Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31026/96

by Bofuwa IYALHO

against the Netherlands

The European Commission of Human Rights sitting in private on

24 October 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 April 1996 by

Bofuwa IYALHO against the Netherlands and registered on 16 April 1996

under file No. 31026/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

25 June 1996 and 28 August 1996 and the observations in reply

submitted by the applicant on 27 August 1996 and

3 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Zairean citizen, born in 1969, and at present

residing in 's-Gravendeel, the Netherlands. Before the Commission she

is represented by Mr. J.B.J.G.M. Schyns, a lawyer practising in Venlo,

the Netherlands.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. The particular circumstances of the case

The applicant requested asylum or, alternatively, a residence

permit for compelling reasons of a humanitarian nature in the

Netherlands on 30 December 1994. In interviews with a liaison officer

of the Immigration and Naturalisation Service (Immigratie- en

Naturalisatiedienst) of the Ministry of Justice (Ministerie van

Justitie) on 30 and 31 December 1994 she stated that she had been

brought up in the family of a niece after her parents had died in an

accident when she had been three years old. She had a son, born in

1985, who was still living with this niece.

Her niece was married to a major in the Zairean national army and

they had received frequent visits from a general called E.B. who was

a prominent and powerful man in Kinshasa. One afternoon at the end of

July 1994 two soldiers had come to the house and had told the applicant

that General E.B. had asked them to collect her. Upon arrival at the

General's office he had asked the applicant to marry him. The applicant

had refused since she was already engaged to Mr. B.M. and she knew that

the General already had three wives.

The General had reacted angrily to her refusal and had had her

locked up in his office until 22.00 hours that evening. Upon her

release she had told her niece what had happened. Her niece had

requested the applicant to leave the house as she was afraid that the

applicant might cause problems for her or her husband. During the month

of August 1994 the applicant had stayed with a friend in Kinshasa.

However, she assumed that the General had had her traced as almost

every weekend she had been taken to his office by his men and the

General had repeated his proposal of marriage. Her friend had also

become afraid of problems and the applicant had stayed with various

acquaintances until 24 October 1994.

On 24 October 1994, when the applicant had been visiting her

fiancé, five soldiers in civilian dress had entered the house and had

started beating her fiancé. When she had tried to intervene she had

been pushed against a wall and had lost consciousness. She had come to

in a cell.

During her detention she had several times been raped by members

of the "Garde Civile". She was only given food when the soldiers felt

like feeding her. On 8 December 1994 she had fallen ill and had been

taken to hospital. Two days later she had received a visit from her

niece and a friend, Mrs. M.M. Whilst pretending to go for a walk with

her visitors she had managed to escape. She had been taken to a village

near Kinshasa where she had been informed by her niece that her fiancé

had died.

Her niece had paid Mrs. M.M. to enable the applicant to

leave the country. On 28 December 1994 she had travelled by aeroplane

from Kinshasa to Belgium, using the passport of the daughter of Mrs.

M.M., who was living in Belgium. Upon arrival she had gone to the

Netherlands where Mrs. M.M., who had accompanied her on her journey,

had handed her her own passport.

The State Secretary for Justice (Staatssecretaris van Justitie)

rejected the applicant's requests on 15 November 1995 and the applicant

filed a notice of objection (bezwaarschrift). She also requested the

President of the Aliens' Chamber of the Regional Court of The Hague,

sitting at Zwolle (President van de Vreemdelingenkamer van de

Arrondissementsrechtbank 's-Gravenhage, zittinghoudende te Zwolle) to

issue an interim measure (voorlopige voorziening) enabling her to await

the result of the notice of objection in the Netherlands.

Following a hearing on 12 January 1996 the President of the

Regional Court rejected the request for an interim measure on

19 January 1996. He held that the applicant had never been politically

active and was not regarded as an important political opponent. Also,

it had not been shown that the applicant had experienced problems from

the side of the Zairean authorities as a result of her refusal to

become a general's wife or mistress. The President further considered

that the applicant had not submitted anything in support of her

account: no documents concerning the death of her fiancé or concerning

her being wanted by the Zairean authorities had been provided. Finally,

the President found the applicant's account of her escape from hospital

not credible and considered that she could have found refuge elsewhere

in Zaire.

Finding it not reasonable to believe that any further

investigation could contribute to an assessment of the case, the

President declared the notice of objection ill-founded in the same

decision.

On 1 April 1996 the applicant, submitting that new facts and/or

circumstances had occurred, filed a new request for asylum or,

alternatively, a residence permit for compelling reasons of a

humanitarian nature. She had obtained a medical certificate from a

doctor, working in the reception centre for asylum seekers where she

was staying, according to which she was suffering from a kind of post-

traumatic stress caused mainly by sexual abuse which she had undergone

in the country of origin. With her new request the applicant also

submitted an original procès-verbal of the Registry of the Kinshasa

Regional Court, stating that on 8 December 1994 the applicant's movable

and immovable property had been seized.

The State Secretary for Justice declared the request for asylum

inadmissible on 16 April 1996, holding that no new facts and

circumstances had been established which justified such a renewed

request. The medical certificate was not found to add anything to the

applicant's account as she had already stated at the time of her first

request that she had been raped. The State Secretary further considered

that the document concerning the seizure of the applicant's property

did also not justify a renewed request.

The State Secretary also rejected the applicant's request for a

residence permit for compelling reasons of a humanitarian nature. It

was, moreover, decided that any notice of objection or request for an

interim measure to be filed by the applicant would not be granted

suspensive effect.

The applicant was taken into detention pending her expulsion on

16 April 1996. On the same date she lodged a notice of objection with

the State Secretary and requested an interim measure from the President

of the Regional Court of The Hague. In her further memorial of

6 May 1996, the applicant informed the President that she had developed

a stable relationship with an Angolan national who was in possession

of a residence permit in the Netherlands and that they were expecting

a child. She alleged that her expulsion from the Netherlands would

constitute a violation of, inter alia, Articles 3 and 8 of the

Convention. It appears that these proceedings are currently still

pending.

Following the application of Rule 36 by the Commission on

16 April 1996, the applicant was released from detention.

On 7 May 1996 the State Secretary granted a residence permit for

compelling reasons of a humanitarian nature to an Iraqi woman who had

stated that she had not been politically active but that she had been

raped by soldiers in her country of origin.

In support of her application the applicant has submitted an

undated document entitled "warrant of arrest" which states that a

complaint has been filed against the applicant as she is alleged to

have insulted the national emblem and to have endangered the security

of the State. According to the Government this document is not

authentic since it contains a wording which has not been used in

official documents since 1990.

The applicant has also submitted a document entitled "death

certificate", which is dated 13 December 1994 and is signed by a

forensic doctor. It states that Mr. M.B. has died in a hospital on

10 December 1994.

B. Relevant domestic law and practice

According to Section 11 para. 5 of the Aliens Act

(Vreemdelingenwet) a residence permit may be refused on grounds of

public interest. In general, an application for a residence permit in

the Netherlands is granted only if the foreigner's presence serves an

essential national interest or if there are compelling reasons of a

humanitarian nature.

If an appeal is filed with the Regional Court against the

decision not to refrain from expulsion pending, inter alia, the notice

of objection, the Regional Court will insofar as possible also decide

on the rejection of the request for entry to the Netherlands (Section

33b Aliens Act).

Pursuant to Section 15b para. 1 sub (b) of the Aliens Act, a

request for admittance as a refugee will be rejected as being

inadmissible if the foreigner has previously requested admittance on

the same grounds and the decision rejecting this earlier request has

become final.

As regards the assessment of asylum applications made by Zairean

nationals in the Netherlands, the Legal Uniformity Division

(Rechtseenheidskamer) of the Regional Court of The Hague held in a

normative judgment of 3 November 1994 that the risk for a Zairean

national of being apprehended and held in detention upon his return was

greater if he had already been detained before and if he was therefore

known to the authorities. For those Zairean nationals entering the

country who had previously been exposed to inhuman treatment as

referred to in Article 3 of the Convention, the risk that, when

screened, they might again be arrested, detained and subjected to

inhuman treatment - which, according to the Legal Uniformity Division,

was not inconceivable, on the basis of the available information on

conditions in Zairean jails - made their expulsion and return to Zaire

unacceptable. The Legal Uniformity Division concluded that asylum

seekers who could demonstrate sufficiently convincingly that they

belonged to this group should therefore be granted a residence permit

for compelling reasons of a humanitarian nature (Nieuwsbrief Asiel- en

Vluchtelingenrecht 1994, 60).

Where the Legal Uniformity Division speaks of detention, the

reference is to a registered detention. A detention is assumed to have

been registered only when it has lasted for a substantial period of

time.

The Aliens Circular (Vreemdelingencirculaire) contains the

requirements (concerning, inter alia, income and housing) which have

to be fulfilled by the partner of a foreigner wishing to obtain a

residence permit enabling him or her to remain with this partner in the

Netherlands.

COMPLAINTS

The applicant complains under Article 3 of the Convention that

the Netherlands authorities, by expelling her to Zaire, would expose

her to a serious risk of being subjected to torture or to inhuman or

degrading treatment.

She also complains of discriminatory treatment contrary to

Article 14 of the Convention in that an Iraqi woman who, like the

applicant, had been sexually abused by soldiers in her country of

origin had been granted a residence permit in the Netherlands.

The applicant finally argues that her expulsion would amount to

an interference with her right to respect for her private and family

life which cannot be justified under para. 2 of this provision. In this

respect she submits that she has a relationship with a man in the

Netherlands and that they are expecting a child.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced and registered on 16 April 1996.

The Commission decided on 16 April 1996 to apply Rule 36 of the

Commission's Rules of Procedure until the end of its next session and

the application was subsequently communicated to the Government,

inviting them to submit their observations on the admissibility and

merits of the application.

The completed application form was submitted on 31 May 1996.

Since the applicant raised her complaints under Articles 8 and 14 of

the Convention for the first time in the application form, the

Government were invited to submit their observations on the

admissibility and merits of this part of the application as well.

The Commission decided to prolong the application of Rule 36 on

4 July and 12 September 1996.

The Government's observations concerning the complaint under

Article 3 were submitted on 25 June 1996 and their observations as

regards the other complaints on 28 August 1996. The applicant replied

on 27 August and 3 October 1996.

THE LAW

1. The applicant complains that her expulsion to Zaire would amount

to inhuman or degrading treatment. She invokes Article 3 (Art. 3) of

the Convention, which provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Government submit that the applicant was not a member of any

political party and did not engage in any political activities against

the authorities of her country of origin. In their view, the

applicant's conflict with General E.B. should be regarded as one of a

purely personal nature and the facts of the case do not give grounds

for supposing that the applicant has personally come to the notice of

the regime to the extent that she is liable to be apprehended on her

return to Zaire.

The Government are further convinced that, on the basis of the

detention which the applicant claims to have suffered, she cannot be

classified as belonging to the high risk groups which qualify for a

residence permit for compelling reasons of a humanitarian nature

pursuant to the judgment of the Legal Uniformity Division of 3 November

1995. As regards the documents submitted by the applicant, the

Government find that the medical certificate does not provide a

separate indication that the inhuman and degrading treatment which the

applicant claims to have been exposed has been inflicted by the Zairean

regime or at its instigation, nor that she would again be subjected to

such treatment on her return. Also, the medical certificate contains

no indication to the effect that the applicant is medically unfit to

return to Zaire. As regards the document relating to the seizure of the

applicant's property, the Government submit that this document does not

indicate whether this seizure was connected to the alleged reasons for

her flight.

The Government further raise doubt about the applicant being in

the possession of a warrant for her arrest which is not addressed to

her but to the authorities. In addition, they submit that this document

contains a wording which has not been in use in official documents

since 1990.

Finally, the Government are of the opinion that the applicant

could invoke the protection of the Zairean authorities in the unlikely

event that she would once again be threatened by General E.B. Moreover,

they assume that the applicant will be able to settle in a part of

Zaire which is outside the reach of the General.

The applicant submits that she does belong to one of the high

risk groups referred to by the Legal Uniformity Division. In this

respect she points out that as she has been detained for a substantial

period of time, her detention must be considered as a registered

detention. She further argues that also Zaireans who have not been

previously detained are arrested upon their return to Zaire. In any

event, the sole fact that she was raped in Zaire should be sufficient

to make her eligible for a residence permit for compelling reasons of

a humanitarian nature.

The applicant denies that she would be able to settle elsewhere

in Zaire or, in view of the fact that General E.B. belongs to the

military of the current regime, to invoke the protection of the Zairean

authorities. According to the applicant, it appears without a doubt

from the arrest warrant which she has submitted that her problems are

also with the Zairean authorities and not of a purely personal nature.

The applicant does not exclude that friends or relatives of hers have

had to resort to bribery in order to obtain the arrest warrant, but

this, in her opinion, does not detract from the validity of its

contents. Furthermore, even assuming that the wording used in the

document is not according to current usage, this does not render the

document worthless.

No relevance should, moreover, be attached to the fact that the

death certificate concerning the applicant's fiancé does not state the

cause of death. The applicant submits that there is no reason to doubt

the contents of the certificate and, in any event, the date of her

fiancé's death corresponds to her account of the facts.

The Commission recalls in the first place that Contracting States

have the right, as a matter of well-established international law and

subject to their treaty obligations including those under Article 3

(Art. 3), to control the entry, residence and expulsion of aliens (cf.

Eur. Court HR., Vilvarajah and Others v. the United Kingdom judgment

of 30 October 1991, Series A no. 215, p. 34, para. 102). Furthermore,

it must be noted that the right to political asylum is not contained

in either the Convention or its Protocols. However, the decision of a

Contracting State to expel or extradite a person may give rise to an

issue under Article 3 (Art. 3) of the Convention, and hence engage the

responsibility of that State under the Convention, where substantial

grounds have been shown for believing that the person concerned faces

a real risk of being subjected to torture or to inhuman or degrading

treatment or punishment in the country to which he or she is to be

returned (ibid., p. 34, paras. 102-103; and Cruz Varas and Others v.

Sweden judgment of 20 March 1991, Series A no. 201, p. 28, para. 69).

The Commission has examined the applicant's submissions and the

documents in support of her application.

As regards the particular circumstances of the present case, the

Commission notes that the applicant alleges to have been detained and

raped in Zaire because she has refused to marry General E.B. It is her

contention that she will again be exposed to inhuman and degrading

treatment if she is returned to that country. However, the Commission

also notes that the applicant has never been involved in any kind of

political activities. The Commission considers that the applicant has

failed to substantiate her allegation that the authorities will arrest

and detain her on her return to Zaire for reasons connected with her

refusal to marry General E.B. or for any other reason.

It is true that the applicant has submitted a document said to

be a warrant for her arrest in which she is accused of having insulted

the national emblem and of having endangered the security of the State.

However, the Commission cannot accept the applicant's contention that

the use in the documents of outdated wording does not detract from its

validity. In the Commission's opinion no evidential weight can be

attached to a document drawn up in a form which has not been in use

since 1990. In addition, it appears rather peculiar that this document

is undated.

The Commission observes, furthermore, that the applicant has not

substantiated her rebuttal of the Government's submission that she

would be able to settle in a part of Zaire which is outside the reach

of the General.

Finally, the Commission considers that it cannot be said, as the

applicant appears to allege, that her expulsion to Zaire would in

itself constitute inhuman or degrading treatment in view of the fact

that she was raped in that country. Without wishing to minimise in any

way such a traumatic experience or its aftermath, the Commission points

out, however, that in order to determine whether or not an expulsion

would be contrary to Article 3 (Art. 3) of the Convention, it is

primarily called upon to assess the risk of ill-treatment which the

applicant runs after being expelled. It has not been submitted in this

respect that the health care available in Zaire is deficient to the

extent that the applicant's expulsion to that country would cause her

a severe level of physical and mental suffering such as to constitute

inhuman treatment within the meaning of Article 3 (Art. 3).

While recalling that a mere possibility of ill-treatment is not

in itself sufficient to give rise to a breach of Article 3 (Art. 3)

(cf. Vilvarajah and Others v. the United Kingdom judgment, loc. cit.,

p. 37, para. 111), the Commission finds that in the present case no

substantial grounds have been established for believing that the

applicant would be exposed to a real risk of being subjected to

treatment contrary to this provision if returned to Zaire.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. In conjunction with her complaint under Article 3 (Art. 3) , the

applicant also complains of discriminatory treatment contrary to

Article 14 (Art. 14) of the Convention in that an Iraqi woman who, like

the applicant, had been sexually abused by soldiers in her country of

origin has been granted a residence permit in the Netherlands.

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government argue that requests for residence permits for

compelling reasons of a humanitarian nature are judged on the merits

of each individual case. The decision to which the applicant refers

concerns a woman from a different country, with a different religious

background, and one in which minor children were involved. In their

opinion, therefore, this is not a matter of similar cases receiving

unequal treatment.

The Commission recalls that, according to the Convention organs,

Article 14 (Art. 14) provides protection against discrimination for

individuals placed in comparable situations.

The Commission reiterates that for the purposes of the

examination of a complaint under Article 3 (Art. 3) of the Convention,

it is necessary to assess the risk of ill-treatment which a person runs

after being expelled. Accordingly, this risk will vary pursuant to the

particular circumstances of each case.

Having regard to the undisputed facts that the case with which

the applicant seeks to compare her own concerns a different country of

origin and a different religious background, the Commission considers

that the applicant has based her allegation of discrimination on a

comparison of two factual situations which prove to be different.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant finally complains that her expulsion would violate

her right to respect for her private and family life. She submits that

she has had a stable relationship for a considerable length of time

with a person who has a residence permit in the Netherlands and that

she is expecting his child. She invokes Article 8 (Art. 8) of the

Convention, which, insofar as relevant, provides as follows:

"1. Everyone has the right to respect for his private and

family life ...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government submit that the applicant has failed to raise this

complaint, which in itself constitutes sufficient grounds for the

applicant to submit a fresh request for admission to the Netherlands,

in the domestic proceedings.

The Commission observes that the applicant has raised this

complaint in her further memorial to the President of the Regional

Court of The Hague in the proceedings concerning her request for an

interim measure of 16 April 1996. However, these proceedings are

currently still pending and the Netherlands authorities can thus not

be considered to have had the opportunity to respond to this allegation

or to remedy the situation, even assuming that the complaint under

Article 8 (Art. 8) can be addressed in these proceedings. It further

does not appear that the applicant has lodged a separate request for

admission to the Netherlands to remain with her partner.

The Commission considers that in these circumstances the

applicant cannot be said to have complied with the requirement of

exhaustion of domestic remedies contained in Article 26 (Art. 26) of

the Convention.

It follows that this part of the application is inadmissible

under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

IYALHO v. THE NETHERLANDS

IYALHO v. THE NETHERLANDS

LEXI