THIRD SECTION

DECISION

Application no . 10260/13 by J . N . against the Netherlands

The European Court of Human Rights (Third Section), sitting on 17 February 2015 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra, Dragoljub Popović , Kristina Pardalos , Johannes Silvis, Valeriu Griţco , Iulia Antoanella Motoc, j udges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 11 February 2013,

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, Mr J . N . , stated that he is a national of the Democratic Republic of Congo (DRC) and that he was born in October 1993 in the DRC. At the time of the introduction of the application, he was staying in the Netherlands . He was represented before the Court by Mr W.H.M. Ummels , a lawyer practising in Rotterdam.

2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker , and Deputy Agent, Ms L. Egmond , both 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. In June 2012, the applicant applied for asylum in the Netherlands, submitting that he was a member of the Banyamulenge (Tutsi) community and that he hailed from South-Kivu in the eastern part of the DRC where he had had problems with the DRC governmental armed forces. He further stated that he had travelled by car form the DRC to Burundi in May 2012, from where he had travelled by air, with a stopover at an unknown airport, to the Netherlands where he had arrived in May 2012 at Schiphol airport. He had never applied for or held a travel document or visa. The person who had accompanied him on his journey had shown documents on the applicant ’ s behalf at control points. The only identity document he submitted was a DRC voter ’ s pass issued in April 2011 by the L . electoral commission. The applicant stated that he had never held any other identity documents.

5. In June 2012 the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie , Integratie en Asiel ; “the Minister”) rejected the applicant ’ s asylum request. The Minister considered that the applicant ’ s failure to substantiate in a sufficient manner his stated identity, nationality and travel itinerary as well as his failure to give a detailed, coherent and verifiable account of his journey to the Netherlands detracted from the credibility of his asylum account which, furthermore, lacked positive persuasiveness. Referring to the official report ( ambtsbericht ) on the DRC, drawn up by the Netherlands Minister of Foreign Affairs in June 2012, the Minister further found that the overall situation in the DRC was not such as to warrant accepting the applicant ’ s asylum request.

6. In July 2012, the Regional Court ( rechtbank ) of The Hague sitting in Zwolle dismissed the applicant ’ s appeal. It considered that, although the situation in South-Kivu fell 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”), a safe relocation alternative existed in Kinshasa. Although possible, the applicant did not file a further appeal with the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State ( Raad van State ).

7. In August 2012 the applicant lodged a fresh asylum request, which was rejected by the Minister in September 2012. Referring to the Netherlands official report on the DRC of June 2012, the Minister held that the articles and reports relied on by the applicant did not lead to a different conclusion as to the lack of credibility of his asylum account and the possibility for him to settle elsewhere in the DRC.

8. In January 2013, the Regional Court of The Hague sitting in Middelburg dismissed the applicant ’ s appeal. It held that, although the overall situation in the DRC had worsened since the decision of June 2012 on the applicant ’ s first asylum request, it could not be said that there was systematic discrimination of Banyamulenge in the DRC and the applicant still had an alternative relocation possibility outside the Kivu area. The applicant filed a further appeal against this decision as well as an accompanying request for a provisional measure, namely a stay of removal pending the proceedings on this further appeal.

9. In January 2013, according to the applicant on the basis of the DRC voter ’ s pass submitted by him in support of his asylum request, the DRC mission in Belgium provided the Netherlands authorities with an “ attestation tenant lieu de passeport ” for the purposes of the applicant ’ s removal to the DRC. This document was valid for one year . On an unspecified date, the applicant was informed that his removal to Kinshasa (DRC) had been scheduled for February 2013.

10. In February 2013, the President of the Administrative Jurisdiction Division granted the applicant ’ s request for a provisional measure. Consequently, the applicant ’ s scheduled removal was cancelled.

11. In February 2013 the Administrative Jurisdiction Division rejected the applicant ’ s further appeal on summary reasoning. It found that the further appeal did not provide 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 ( Vreemdelingenwet 2000 ), no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling.

B. Developments after the introduction of the application

12. In March 2013 the applicant requested the Court to indicate to the Government, by way of an interim measure pursuant to Rule 39 of the Rules of Court, that he should not be removed to Kinshasa (DRC).

13. In April 2013 the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to the DRC for the duration of the proceedings before the Court. The President further decided to bring the application to the notice of the respondent Government in accordance with Rule 54 § 2 (b) of the Court ’ s Rules of Procedure and to submit written observations on the admissibility and merits.

14. In May 2013, the respondent Government informed the Court that, according to information received from the Belgian authorities, the applicant had entered the Schengen area in 2012, using a tourist visa issued by the Belgian authorities and a Rwandan passport. Pending verification of this new information, the Government sought an extension of the time-limit fixed for submission of their written observations. This request was granted by the President.

15. In July 2013, the respondent Government informed the Court that, given the doubts that had arisen as regard the applicant ’ s origins, a language analysis would be carried out.

16. In August 2013, a report was drawn up on the language analysis test carried out by the Office for Country Information and Language Analysis ( Bureau Land en Taal ), a specialised unit of the Netherlands Immigration and Naturalisation Service ( Immigratie - en Naturalisatiedienst ; “IND”) of the Ministry for Security and Justice ( Ministerie van Veiligheid en Justitie ). The conclusion of this language analysis was that the applicant was unequivocally identified as not originating from the DRC (“ eenduidig niet herleidbaar to DR Congo ”) but it was considered likely that he originated from the linguistic community in Rwanda (“ waarschijnlijk herleidbaar tot de spraakgemeenschap binnen Rwanda ”).

17. According to a report issued by the Documents Bureau ( Bureau Documenten ) of the Immigration and Naturalisation Service in September 2013, the DRC voter ’ s pass submitted by the applicant to the Netherlands authorities had possibly not been drawn up and issued by a competent authority ( mogelijk niet bevoegd opgemaakt en afgegeven ) but the document itself was “with virtual certainty” ( met aan zekerheid grenzende waarschijnlijkheid ) authentic.

18. In November 2013, the respondent Government submitted their observations to which the applicant replied in January 2014.

19. In February 2014, the respondent Government submitted a print-out of a website-page of the Belgian Federal Foreign Affairs Service ( Federale Overheidsdienst Buitenlandse Zaken ) containing the details – including a digital passport photograph and particulars of the petitioner – of an accepted application for a tourist visa filed with the Belgian authorities in 2012 by Mr J .N. , a Rwandan national born in the DRC i n October 1990. The respondent Government also submitted a copy of the applicant ’ s asylum application filed in the Netherlands, including a passport photograph of the applicant taken in that context.

20. The applicant ’ s response to these materials was submitted in March 2014.

C. Relevant domestic law and practice

21. 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).

22. At the material time, the respondent Government ’ s policy on asylum-seekers from particular countries was devised by the Minister for Immigration, Integration and Asylum Policy and his successor, the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie ), on the basis of official country assessment reports published by the Minister of Foreign Affairs on the countries of origin of asylum-seekers.

23. On 10 July 2013, the Deputy Minister for Security and Justice 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 North-Kivu and South ‑ Kivu.

24. The moratorium was lifted by the Deputy Minister on 3 February 2014. This policy decision, as published in the Official Gazette ( Staatscourant ) of 12 February 2014 (no. 4196), was based on the contents of an official country assessment report 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 as falling within the scope of Article 15(c) of the Qualification Directive, 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.

COMPLAINT

25. The applicant complained under Article 3 of the Convention that there were substantial grounds for believing that he, being of Banyamulenge origin, would be subjected to treatment prohibited by that provision if he were expelled to Kinshasa (DRC).

THE LAW

26. The applicant complained that his removal to Kinshasa would be contrary to his rights under Article 3 of the Convention, which reads as follows:

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

27. The Government submitted a preliminary objection, arguing that the application should be declared inadmissible as an abuse of the right of application for being based on untrue facts.

28. The Government pointed out that, according to information received from the Belgian authorities as recorded in the European Union Visa Information System (EU-VIS), a person going by the name of “J .N. R. ”, born in October 1990 in the DRC with Rwandan nationality, had applied in April 2012 to the Belgian authorities for a tourist visa for Belgium. This application had been granted and a visa had been issued to this person who held a Rwandan passport. This visa was valid for one month .

29. Noting that this person had the same name as the applicant, that there was a striking resemblance between the passport photographs taken of the Belgian tourist visa petitioner and the applicant, that the person to whom the tourist visa was granted had entered the Schengen area shortly before the applicant had submitted his application for asylum in the Netherlands, and that a language analysis carried out had concluded that the applicant was plainly not from the DRC but probably a member of the language community in Rwanda, the Government concluded that the applicant and the person to whom the tourist visa had been granted were in fact one and the same.

30. The Government therefore considered that the application should be declared inadmissible as an abuse of the right of application, given that apparently the applicant had chosen to base his application on false premises in that no credence could be given to his claim that he was from the DRC, nor to his stated identity and nationality.

31. The applicant maintained that he had been brought to the Netherlands with the help of a travel agent and that, together with the latter, he had left Burundi in 2012 by plane to the Netherlands. The travel agent had organised the documents for the flight. The applicant claimed that he did not know how the journey had been organised and what travel documents had been used by the agent accompanying him. The applicant denied that he was a Rwandan national and that he was in the possession of a Rwandese passport. He further stated that he was not aware of a visa application filed with the Belgian authorities and the use of a Rwandese passport. He further extensively contested the accuracy of the language analysis test carried out, and lastly pointed out that the DRC authorities had provided the Netherlands authorities in January 2013 with an “ attestation tenant lieu de passeport ” for the purpose of his removal to the DRC. According to the applicant, this clearly indicated that the DRC authorities consider him as a national of the DRC.

32. The Court reiterates that under Article 35 § 3(a) of the Convention an application may be rejected as an abuse of the right of individual application if it was knowingly based on untrue facts. However, the applicant ’ s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC] , no. 67810/10 , § 28 with further references, ECHR 2014).

33. The Court cannot deny that the various elements on which the Government relied to reach their conclusion that the applicant and the Rwandan passport holder to whom a Belgian tourist visa was granted were in fact one and the same person cast serious doubts on the applicant ’ s stated identity, nationality and reasons for seeking asylum in the Netherlands. However, the Court cannot find demonstrated with a sufficient degree of certainty – on the mere basis of the passport photographs, either considered alone or together with other elements relied on by the Government – that the applicant is the same person as the Rwandan passport holder. Apart from the digitally stored passport photographs, there is no other objective element, such as for instance fingerprints taken from the person concerned, which incontestably links the applicant to the Rwandan passport holder.

34. In these circumstances, the Court cannot find it sufficiently established that the applicant has deliberately sought to mislead the Court. Consequently, it rejects the Government ’ s preliminary objection.

35. As to the substance of his grievance under Article 3, the applicant claimed that, if expelled to Kinshasa, he would be exposed to a real risk of being subjected to treatment in breach of Article 3 as no Banyamulenge live in Kinshasa and as they are being held responsible for the violence in the eastern part of the DRC.

36. The Government did not submit any observations on the substance of this complaint.

37. As regards the removal of aliens, the Court has set out the general principles in its recent judgment in the case of M.E. v. Denmark ( no. 58363/10 , 8 July 2014) in the following manner:

“47. The Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens ( Abdulaziz , Cabales and Balkandali v. the United Kingdom , judgment of 28 May 1985, § 67, Series A no. 94; Boujlifa v. France, judgment of 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII).

48. 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 ( Saadi v. Italy [GC], no. 37201/06, § 125, 28 February 2008).

49. The mere possibility of ill-treatment on account of an unsettled situation in the requesting country does not in itself give rise to a breach of Article 3 (see, Vilvarajah and Others v. the United Kingdom , 30 October 1991, § 111, Series A no. 215). Where the sources available to the Court describe a general situation, an applicant ’ s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 73, ECHR 2005 ‑ I), except in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3 (see NA. v. the United Kingdom , no. 25904/07, §§ 115-16, 17 July 2008; Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07, § 217, 28 June 2011; and Savriddin Dzhurayev v. Russia , no. 71386/10, § 153, ECHR 2013 (extracts)).

50. The standards of Article 3 imply that the ill-treatment the applicant alleges he will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case ( Hilal v. the United Kingdom , no.45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection ( H.L.R. v. France , judgment of 29 April 1997, § 40, Reports 1997-III).

51. Finally, in cases concerning the expulsion of asylum seekers, the Court does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. It must be satisfied, though, that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non ‑ Contracting States, agencies of the United Nations and reputable non ‑ governmental organisations (see, NA. v. the United Kingdom , cited above, § 119).”

38. The Court notes that the applicant only invoked the general security situation in the DRC, including the Kivu provinces and Kinshasa, and the fact that he is of Banyamulenge ethnic origin as reasons for his fear of a risk of ill-treatment in the DRC. 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 15c of the Qualification Directive but consider that rejected asylum-seekers hailing from this region have a safe relocation alternative in other parts of the DRC, including Kinshasa (see paragraphs 6, 8 and 24 above)

39. In this context, the Court reiterates that Article 3 does not, as such, preclude Contracting States from placing reliance 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. Therefore, as a precondition of relying on an internal flight or relocation alternative, certain guarantees 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, 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).

40. The Court is aware of the regular occurrence of reports of human rights violations in the DRC, including discrimination on the basis of ethnicity. However, the applicant has not demonstrated that, apart from the areas in the eastern DRC considered by the Netherlands authorities as falling within the scope of Article 15c of the Qualification Directive, the general security situation in the DRC, including Kinshasa, is such that all persons living there must be regarded as being at risk of suffering treatment prohibited by Article 3. 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.

41. 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.

42. 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 19 March 2015 .

             Stephen Phillips Josep Casadevall Registrar President