THIRD SECTION

DECISION

Application no . 64047/10 M.M.R. against the Netherlands

The European Court of Human Rights (Third Section), sitting on 24 May 2016 as a Chamber composed of:

Luis López Guerra, President, Helena Jäderblom, Johannes Silvis, Branko Lubarda, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 4 November 2010,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms M.M.R., stated that she is a national of the Democratic Republic of the Congo (“the DRC”) and that she was born in 1988. She is currently living in the Netherlands. The President decided not to disclose the applicant ’ s identity to the public (Rule 47 § 4). She was represented before the Court by Mr G. Vergouw, a lawyer practising in Arnhem.

2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

4. On an unspecified day in July 2010 the applicant fled from her native DRC to the Netherlands. She arrived on 8 July 2010 and applied for asylum. On 26 July 2010 she was interviewed by the immigration authorities about her identity, nationality and travel route. On 27 July 2010 she submitted corrections and additions ( correcties en aanvullingen ) to the report drawn up of the first interview ( eerste gehoor ). On 28 July 2010, the applicant was interviewed about her reason for seeking asylum. On 29 July 2010 she submitted corrections and additions to the report drawn up of the second interview ( nader gehoor ). In the interviews she gave the following account.

5. She was of Banyamulenge (ethnic Tutsi) origin and came from Bukavo, the capital of the South Kivu province in the east of the DRC. In August 2000 her father was killed in a fight with members of an angry crowd who had entered her family home in Bukavo, screaming that the Banyamulenge should leave the country. The applicant ’ s mother fled into the woods, together with the applicant and one of her sisters. Her older sister Ms E. and two of her brothers also fled, but after the incident she did not see them again. After the death of her father, the applicant and her remaining family were given a house and financial aid by Papa K., a friend of her father ’ s. In September 2004 six or seven men entered the applicant ’ s home, initially looking for Banyamulenge men and boys. They did not find any. The men then raped the applicant, as well as her mother and sister. Afterwards, the applicant was taken to a house where there were other women. She was raped and ill-treated on a daily basis. After four months, in January 2005, a man acting at the request of Papa K. managed to free her and took her to Papa K. ’ s house. After she recovered the applicant was moved at the instigation of Papa K. to her grandparents ’ house in the Nguba neighbourhood in Bukavo. In 2007 anti-Banyamulenge sentiments in the Congolese population resurfaced again. The applicant was hassled at school but eventually obtained a university diploma in 2008. For a while nothing major happened. Around the end of January or early February 2009, unknown men entered her grandparents ’ home, looking for Banyamulenge men and boys. They raped her grandmother, chopped off her grandfather ’ s arm and leg because he had refused to rape the applicant, raped the applicant, killed both her grandparents and took the applicant with them. As before, the applicant was taken to a house where there were other women and girls. She was sexually abused and ill-treated every two to three days. On 6 July 2010 a man acting for Papa K. came to the house and took the applicant with him.

6. On 30 July 2010 the Minister of Justice ( Minister van Justitie ;“the Minister”) notified the applicant of his intention ( voornemen ) to reject her asylum application. The certificate of loss of documents ( attestation de perte des pièces ) submitted by her was found to be a forgery. The certificate, which concerned the applicant ’ s loss of her voting card ( carte d ’ électeur ), was also found to be unauthentic in that it had not been drawn up by the competent authority. As the applicant gave incorrect statements about the document and continued to claim that it was authentic, the Minister found that serious doubts had arisen as to the applicant ’ s claimed identity and nationality. The absence of any other travel or identity documents and her inability to give a consistent, detailed and verifiable account of her journey to the Netherlands further detracted from the credibility of her account. The Minister also considered it odd that for someone who had lived virtually her entire life in Bukavo and who had gone to university, the applicant had hardly any basic knowledge about her hometown. For instance, she did not know the former colonial name of the town, who the mayor was, and that a “khadafi” is a petrol seller. She had to think about the name of the cathedral and anthem of the DRC, and she did not know the colour of car licence plates. The Minister therefore found it unlikely that the applicant actually came from Bukavu. As she had failed to establish her identity, her asylum claim, which was based on her having lived in Bukavu, was found to lack credibility.

7. In written comments ( zienswijze ) made on 3 August 2010, the applicant maintained her account and gave explanations for her inability to answer certain questions about Bukavu. She further requested to have a language analysis conducted to prove her origin.

8. In a decision of the same date the Minister rejected the applicant ’ s asylum application, confirming the finding that as she had failed to demonstrate her identity and nationality, her asylum claim lacked credibility. The Minister further found that there was no need for a language analysis test.

9. On 5 August 2010 the applicant lodged an appeal with the Regional Court ( rechtbank ) of The Hague, accompanied by a request for a provisional measure ( voorlopige voorziening ) to stay her expulsion pending the outcome of her appeal.

10. On 20 August 2010 a hearing took place before the Regional Court of The Hague sitting in Arnhem. It was attended by the applicant ’ s sister Ms E. who was living in the Netherlands and had obtained Netherlands nationality. She had been tracked down by the Dutch Council for Refugees ( VluchtelingenWerk Nederland ). The purpose of her attendance was to prove the applicant ’ s identity and nationality. To this end, Ms E. submitted documents concerning her own first asylum interview in the Netherlands, during which she had mentioned the applicant as a family member who had not accompanied her on her flight there.

11. By judgment of 27 August 2010 the provisional-measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Arnhem rejected the applicant ’ s appeal and the accompanying request for a provisional measure. The judge accepted the Minister ’ s decision and the underlying reasoning. The submissions of the applicant ’ s sister Ms E. were not taken into account by the judge.

12. The applicant ’ s further appeal to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) was dismissed on 28 October 2010. The Administrative Jurisdiction Division found that there were no grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ). Having regard to section 91(2) of the Aliens Act 2000, no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against that decision.

B. Relevant domestic law and practice

13. The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).

14. At the material time, the respondent Government ’ s policy on asylum seekers from particular countries was devised by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum seekers.

15. On 10 July 2013, the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) adopted a moratorium on decisions on asylum applications and expulsions ( besluit- en vertrekmoratorium) for asylum seekers of Tutsi origin hailing from the east of the DRC, including the provinces of North Kivu and South Kivu.

16. The moratorium was lifted by the Deputy Minister on 3 February 2014. That policy decision, published in the Official Gazette ( Staatscourant ) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report ( ambtsbericht ) on the DRC released by the Minister of Foreign Affairs on 27 November 2013. It was found in this report that there was no systemic, structural and organised discrimination of Tutsis in the DRC, that there was no structural violence in the DRC against the Tutsi population or other Congolese with a Tutsi background and that Tutsi groups could obtain protection from the DRC authorities. Although the general situation in the provinces of North Kivu, South Kivu, Haut-Uele and Bas-Uele in the eastern part of the DRC continued to be considered to fall within the scope of Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”; see, for further details, Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07 , §§ 30-32, 28 June 2011 ), an internal protection alternative was found to be available in other parts of the DRC, including Kinshasa, for asylum seekers hailing from those provinces who did not qualify for refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees.

17. In December 2014 the Minister of Foreign Affairs issued a new official country assessment report on the DRC, according to which the general situation in the provinces of North Kivu and South Kivu remained unsettled and unpredictable and that the situation of the Tutsis in the rest of the DRC, including Kinshasa, remained unchanged in comparison with the last reporting period. As regards the situation of women, the report reads:

“Women in the DRC occupy a subordinate position. Discrimination against women is widespread and they often have no access to decision-making, adequate healthcare, clean water, basic sanitation and legal remedies. The general position of women remained consistently bad during the reporting period. Several NGOs are active in the DRC in the area of women ’ s rights and the improvement of the position of women. A draft bill for equal treatment between men and women, which has been taken up for examination in parliament, has not yet been adopted during the reporting period.

The Constitution stipulates that the government is to see to it that sexual violence against women is eliminated, in particular when it is used as a weapon aiming at destabilising or disrupting the family. Such forms of sexual violence are classified in the constitution as a crime against humanity.

Sexual violence against women and girls is widespread throughout the entire country. Cases of sexual violence are most numerous in areas of war where rape is often used as a weapon in the conflict. The BCNUDH [United Nations Joint Human Rights Office] registered from January 2014 to June 2014 256 victims of sexual violence: 156 women in the Orientale province, 70 women and 3 men in North Kivu, 16 women in Katanga and 11 women in South Kivu. In August 2014 the BCNUDH registered 257 human rights violations, including 50 cases of sexual violence...

On 9 July 2014 President Kabila appointed Jeanine Mabunda Lioko Mudiayi as special advisor in the fight against sexual violence and the recruitment of child soldiers. She declared on 20 August 2014 that remarkable progress had been made in North Kivu in the fight against sexual violence. The Ministry of Defence announced [at the] end of August 2014 a national fight against sexual violence committed by Congolese soldiers. The police have trained special units in Goma and Bukavu to combat sexual violence. ...

For most women in the DRC is it difficult to call in protection against sexual violence. In theory it is indeed possible to report rape but in practice women decline to do so, due to social stigma and lack of confidence in the judicial system. When a victim decides to turn to the authorities, it remains questionable whether her case will be taken up. Police officers nearly always ask victims for a financial contribution for carrying out the investigation.

... the Congolese NGO LIZADEEL [ Ligue de la Zone Afrique pour la Défense des Droits des Enfants, Etudiants et Elèves ] has small centres in various towns in the DRC where victims of sexual violence are accommodated and accompanied to medical care facilities. There is a special telephone number for reporting sexual violence ...

In Kinshasa, a single woman with a job and able to fend for herself has sufficient freedom ... Single women from other parts of the country can join their own ethnic community ( communauté ) in Kinshasa. A single woman from out of town – who has no family in town – can temporarily find shelter with someone from their own community. Single women also seek support from the Catholic Church or one of the many awakening [evangelical] churches in Kinshasa. In Kinshasa legal training is given with a view to prosecuting perpetrators of sexual violence. The NGO LIZADEEL runs a shelter for traumatised women in Kinshasa.”

18. In a letter of 27 January 2015, the Deputy Minister informed the Lower House of Parliament that on the basis of the official country assessment report on the DRC of December 2014 the provinces of North Kivu and South Kivu continued to be considered to fall within the scope of Article 15(c) of the Qualification Directive, but that this qualification no longer applied to the provinces of Haut-Uele and Bas-Uele and therefore the “15(c) policy” in respect of these regions was discontinued.

C. Relevant international materials

19. The summary of the report on the “Conditions for Tutsis in Kinshasa”, published on 19 January 2015 by the Norwegian Country of Origin Information Centre, reads:

“The Tutsis ’ share of the population of the Democratic Republic of Congo is fairly small, but they have played a political role in the country that is much more significant than their number would lead one to expect. The Tutsi population of Kinshasa has always been rather small. When the second Congo war broke out in August 1998, Tutsis were victims of large pogroms in Kinshasa after they were collectively blamed for Rwanda ’ s interference in Congolese politics by the country ’ s president and authorities. During and after the pogroms, the Tutsis who survived were either evacuated or managed to leave Kinshasa by themselves. Since the early 2000s, there have been no reports of human rights violations against Tutsis in Kinshasa. This can be explained partly by there being few Tutsis living there, and partly by political circumstances that differ from those present at the outbreak of the second Congo war in 1998.”

20. The main findings of the report “Situation des femmes seules à Kinshasa”, released on 15 January 2016 by the Swiss State Secretariat for Migration SEM (Country Analysis) states:

“In a country which ranks among the lowest according to the Human development index, women are [also] subject to obvious discrimination. Already vulnerable as a woman, a single woman deprived of a family or a social network is even more vulnerable without a means of existence. However, some single women can organise [themselves] in Kinshasa and find support to improve their living conditions and attempt to secure their financial independence.”

COMPLAINT

21. The applicant complained that there were substantial grounds for believing that she would be subjected to treatment contrary to Articles 2 and/or 3 of the Convention if she were expelled to the DRC, in particular, that she was at risk of falling victim to sexual violence, for which it would be difficult to obtain the protection of the DRC authorities.

THE LAW

22. The applicant complained that her removal to the DRC would violate her rights under Article 2 and/or 3 of the Convention.

The relevant part of Article 2 reads:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties ’ submissions

23. The Government argued that the applicant had failed to establish that she would be subjected to treatment contrary to Article 3 of the Convention as no credibility had been given to her claimed identity, nationality and hence her account in support of her asylum application. She had not submitted any documents to confirm her identity and nationality and had also failed in her statements to make a convincing case for her claims of origin.

24. The mere fact that the applicant is a woman was, according to the Government, not a sufficient reason to conclude that she ran a risk of treatment contrary to Article 3 of the Convention. They submitted that the applicant should make a persuasive case on the basis of personal facts and circumstances that on returning to the DRC she would face the threat of violence, sexual or otherwise.

25. The applicant disagreed, submitting that being a young single woman of Banyamulenge origin with no social or other ties outside of South Kivu made her very vulnerable and it was thus plausible that in the DRC she would run a real risk of being subjected to treatment in violation of Article 3.

B. The Court ’ s assessment

26. The Court reaffirms that a right to asylum and a right to a residence permit are not, as such, guaranteed by the Convention and that, under the terms of Article 19 and Article 32 § 1 of the Convention, the Court cannot review whether the provisions of the 1951 Geneva Convention have been correctly applied by the Netherlands authorities (see, for instance, I. v. the Netherlands (dec.), no. 24147/11, § 43, 18 October 2011).

27. The Court further finds that it is more appropriate to deal with the complaint under Article 2 in the context of its examination of the related complaint under Article 3, and will proceed on that basis (see J.H. v. the United Kingdom , no. 48839/09, § 37, 20 December 2011).

28. It is the Court ’ s settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. It principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection (see N. v. the United Kingdom [GC], no. 26565/05, §§ 30-31 with further references, ECHR 2008).

29. As to the material date, the existence of the risk of ill-treatment must be assessed primarily with reference to the facts which were known or ought to have been known to the Contracting State at the time of expulsion (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 121, ECHR 2012). However, since the applicant has not yet been expelled, the material point in time must be that of the Court ’ s consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Chahal v. the United Kingdom , 15 November 1996, § 86, Reports of Judgments and Decisions 1996 ‑ V; M.A. v. Switzerland , no. 52589/13, § 54, 18 November 2014; and Khamrakulov v. Russia , no. 68894/13, § 64, 16 April 2015).

30. The Court notes that the domestic authorities disbelieved the applicant ’ s claimed ethnic and geographical origin and, consequently, her asylum statement which was based thereon. Even assuming that the applicant actually comes from Bukavo in South Kivu and is of Banyamulenge origin, the Court further notes that the Netherlands authorities acknowledge that the general situation in the eastern part of the DRC, including the Kivu provinces, falls within the scope of Article 15(c) of the Qualification Directive but consider that rejected asylum seekers hailing from the region have a safe relocation alternative in other parts of the DRC, including Kinshasa (see paragraph 16 above).

31. The jurisdiction of this Court is limited to the interpretation of the Convention and it would not, therefore, be appropriate for it to express any views on the ambit or scope of article 15 (c) of the Qualification Direction. However, based on the interpretation of the European Court of Justice (ECJ) in Elgafaji (see C-465/07 Elgafaji v Staatssecretaris van Justitie , judgment of 17 February 2009) the Court is not persuaded that Article 3 of the Convention, as interpreted in NA. v. the United Kingdom (no. 25904/07, 17 July 2008), does not offer parallel protection to that afforded under the Directive. In particular, it notes that the threshold set by both provisions may, in exceptional circumstances, be attained in consequence of a situation of general violence of such intensity that any person being returned to the region in question would be at risk simply on a ccount of their presence there (see Sufi and Elmi , nos. 8319/07 and 11449/07 , § 226, 28 June 2011 ).

32. The Court reiterates that Article 3 does not, as such, preclude Contracting States from relying on the existence of an internal flight or relocation alternative in their assessment of an individual ’ s claim that a return to the country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision. However, the Court has held that reliance on such an alternative does not affect the responsibility of the expelling Contracting State to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. As a precondition for relying on an internal flight or relocation alternative, certain guarantees therefore have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, all the more so if in the absence of such guarantees there is a possibility of his or her ending up in a part of the country of origin where there is a real risk of ill ‑ treatment (see B.K.A v. Sweden , no. 11161/11, § 44 with further references, 19 December 2013).

33. The Court is aware of the regular occurrence of reports of human rights violations in the DRC, including discrimination based on ethnicity and (sexual) violence against women. However, the applicant did not demonstrate that, apart from the two provinces in eastern DRC considered by the Netherlands authorities to fall within the scope of Article 15(c) of the Qualification Directive, the general security situation in the DRC, including Kinshasa, was such that all persons living there had to be regarded as at risk of suffering treatment prohibited by Article 3, or that the applicant – for belonging to the Banyamulenge minority or for being a woman – would be exposed to such a risk in those areas of the DRC. The case file contains no material indicating that the applicant ’ s personal position would be any worse than most other Banyamulenge women currently living in those areas of the DRC. Although the Court accepts that the general situation in the DRC for women, including those of Banyamulenge origin, may be far from ideal, it cannot find that it must be regarded as so harrowing that there would already be a real risk of treatment prohibited by Article 3 in the event that a woman was to be removed to the DRC.

34. It has therefore not been established that the applicant, if expelled to the DRC, would face a real risk of being subjected to treatment in breach of Article 3 of the Convention.

35. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

36. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 June 2016 .

             Stephen Phillips Luis López Guerra Registrar President