THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51600/99 by Genz ZUBEYDE against Norway

The European Court of Human Rights (Third Section), sitting on 28 February 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 5 October 1999,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

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

The applicant, Ms Genz Zubeyde, is a Turkish  national, who was born in 1963 and resides at a centre for asylum seekers at Bjørnevatn in Norway. She is represented before the Court by Mr J.M. Birkeland, a lawyer practising in Oslo.

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

In September 1991 the applicant and her husband arrived with their three children to Germany and applied for asylum and a residence permit. After having examined the application on 27 January and 19 February 1998, the German administrative authorities rejected the application, which decision was upheld by the German courts, the last time on 19 August 1998.

In the meantime, on 21 June 1998 the applicant arrived with her children to Norway, where she applied for asylum and a residence permit. She did not inform the Norwegian authorities about their stay with her husband in Germany. Instead she stated that they had left Turkey in order to seek asylum in Norway. She submitted that three days before arriving in Norway, she had left her home village together with her two youngest children; a third child, her eldest son (born in 1978), was already in Istanbul. The applicant and her three children had left by plane from Istanbul, with a smuggler. They had gone by aeroplane first to an unknown place, then to Oslo.  She had paid DM 40,000 to a smuggler league for the services.

As regards the reasons for seeking asylum and residence in Norway, the applicant stated to the Norwegian authorities that she was an ethnic Kurd from Turkey and that her husband had been seriously tortured and had his leg broken in three places. Before his arrest he had worked as a lorry driver transporting goods to Iran, Iraq and Syria. Until the last judicial proceedings before the High Court referred to below, the applicant indicated that the husband’s detention and ill-treatment had occurred in 1991, but before the High Court she indicated that 1988 was the year when it happened. She affirmed that the husband was arrested together with three other persons, one of whom managed to escape and told the applicant that her husband was accused of transporting illegal Kurdish publications to Turkey. Upon release, her husband was first brought to her sister. He then went under ground and ceased working as a lorry driver. Until 1991 she met him several times but always at different locations. The last time they met was that year. Thereafter, he left telephone messages with a neighbour twice a year to say that he was all right; she herself only talked to him on three occasions, on the neighbour’s telephone. The last such occasion was approximately seven months before she left Turkey. She did not know of his whereabouts or what he was doing, nor had she had any contact with him after her arrival to Norway.

The applicant further submitted that, since her husband went under ground, the Turkish police had been after him and had called her to the police station. There she had been questioned about the husband’s whereabouts, shouted at and beaten. On three occasions she had been raped, after having been blindfolded and brought to a dark room. The first time this happened was in 1994, the second time was four months later and the third time was in 1996. Before being raped she had been asked about her husband’s whereabouts. When she answered that she did not know, she was raped, the first time by one man, the second time by two men and the third time by one man. In connection with the rapes she had been beaten with cans on her breasts and chest. The police had told her not to report these infringements to anybody. Nevertheless, because of the bleedings she contacted a doctor, but without informing about the cause. She had not confided in anyone, except for her daughter, after the police had threatened to take her as she wished to warn the daughter. The last time the applicant was called by the police was approximately seven months before leaving Turkey. She was then shouted at and beaten but was not raped. The interrogations took place at regular intervals, perhaps twice a month, and the frequency decreased gradually. In 1997 it occurred twice. The applicant regarded it as hopeless to lodge a complaint against the ill-treatment by the police.

On 24 March 1999 the Directorate of Immigration ( Utlendingsdirektoratet ) rejected the asylum application on the ground that the applicant had failed to show that she would be exposed to persecution in her home country within the meaning of the relevant provisions of the 1988 Aliens Act ( Utlendingsloven ) and the UN Refugee Convention.  It had regard to the fact that the applicant had continued to live in her home country for 7 years after her husband had gone under ground and did not leave the country until 7 months after the last time she had "problems with the authorities". Moreover, contrary to what she had alleged, "it seemed hardly likely that she had been subjected to pressures from the authorities to the same extent and intensity throughout the 7 years’ period". In this connection, the Directorate noted that the applicant and her husband had not been politically active and that their contact had been very limited. In any event, it did not appear from her statements that the authorities knew about these contacts.

On appeal, on 6 August 1999, the Ministry of Justice upheld the Directorate’s refusal, endorsing its reasoning in the main. In addition, the Ministry emphasised inter alia that had it not been specified why her husband had been in hiding since 1991, when he went under ground after his release by the police and that it had not been shown that he was wanted or was accused by the authorities. These factors, taken together with the fact that the applicant had continued to live in the same village, despite the alleged problems with the local police, weakened the credibility of her account.

The applicant and her children appealed against the above decisions to Oslo City Court ( byrett ) and requested an interim order not to be deported pending the proceedings. The latter request was rejected on 21 October 1999, which decision was upheld by Borgarting High Court ( lagamannsrett ) on 8 November 1999.

In the meantime, on 5 October 1999, the applicant and her children were arrested with a view to deportation from Norway to Turkey. On the same date she lodged an application under the Convention, claiming that her expulsion to Turkey would expose her to a risk of torture in violation of Article 3 of the Convention and would deprive her of the possibility of obtaining effective judicial review in breach of Article 13. She requested the Court to make an indication to the Norwegian authorities, under Rule 39 of the Rules of Court, not to expel her pending the outcome of the domestic proceedings. The Court granted the request on 6 October 1999.

On 11 January 2000, in the principal proceedings, the City Court rejected the applicant’s appeal against the Ministry of Justice’s decision of 6 August 1999. It did not find it established that, because of circumstances pertaining to her husband, the applicant risked exposure to rape or other violence by the Turkish authorities were she to return. It found it surprising that the applicant had not attempted to flee Turkey earlier if she, because of her husband’s political activities, had been subjected to the kind of treatment which she alleged. Nor had she substantiated her claim that the husband was wanted by the Turkish authorities.

In the light of the above, on 22 June 2000 the Government requested the Court to lift its Rule 39 indication, which the Court refused on 17 October 2000.

By a judgement of 12 March 2001 the High Court quashed the Ministry of Justice’s decision of 6 August 1999 refusing the applicant residence in Norway. The High Court observed that, provided the applicant’s version of facts was correct, it was clear that she had a well reasoned fear of persecution in the event that she were to return to Turkey. According to her, the instances of rape and physical ill-treatment were connected to the police’s search for her husband, who was said to be responsible for the dissemination of illegal publications supporting the Kurdish cause. As long as the husband still was under ground, there was reason to believe that the police would resort to such means either against the applicant or her daughter.

Unlike the City Court, the High Court found that the reasons invoked by the Ministry of Justice for doubting the credibility of the applicant’s version of events did not carry much weight. Thus, it was not surprising that she had not left Turkey earlier, which must have been a difficult decision and must have taken some time to prepare. She had herself explained that for a long while she hoped that her husband would return and that the police would stop harassing her. Nor did the High Court find it surprising that the applicant’s husband had not been convicted, even though he had been wanted by the police for a long period, or that he was still wanted by the police after his arrest, ill-treatment and release in 1988, or that the applicant was unable to support these allegations by documentary evidence.

The High Court noted that the applicant had not provided any information about the Air Company, the place of transit or other details concerning the family’s travel to Norway. According to an Adviser of the Aliens Appeals Board ( Utlendingsnemnden - a new appellate body which started to operate on 1 January 2001) this suggested that the family might have arrived to the country in a different way than indicated by the applicant, for example via Germany after having received a tourist visa for visiting the applicant’s sister. The High Court agreed that it seemed strange that the applicant had not been able to give any details about her route to Norway, but this could be attributed to a number of factors, for instance her cultural background, that she had not organised the travel herself or had been required not to disclose information about the itinerary. In any event this could not give sufficient cause for doubting the credibility of the remainder of the applicant’s accounts.

The High Court further observed that the applicant’s version was supported by what was generally known about the treatment by Turkish authorities of persons suspected of illegal political activities and their family members. According to documentary evidence, such treatment could include rape.

Moreover, nothing had come to light during the applicant’s statement to the High Court which gave reason for doubting its credibility. Ms Anne-Lill Haabeth , Psychiatric Nurse, who had treated the applicant since November 1999, involving some 20 consultations, had stated to the High Court that the applicant had hardly given any details about the incidents of rape. While it would be for a doctor to make a diagnosis, she considered that the applicant had shown classical symptoms of the post-traumatic stress syndrome and found her accounts absolutely credible. Ms Haabeth nevertheless confirmed that a condition of this kind could also be related to other traumas than rape. The High Court observed that, even though Ms Haabeth’s witness statement ought to be considered in the light of her role as a therapist for the applicant, it had to attach a certain weight to her testimony.

Against this background, the High Court noted, since the applicant’s account was not supported by any documentary evidence, it had few elements on which to base its assessment. The question thus arose as to which extent the parties could be expected to contribute with additional evidence. The applicant could be expected to have submitted declarations from, for instance, her sister or other relatives or from neighbours, in order to substantiate elements in her version of events, notably that her husband had gone under ground since 1988. The respondent authorities, for their part, had stated that, because the applicant’s account was not deemed credible from the outset, they had taken no particular measures to investigate. In the view of the High Court, it would have been relatively simple for the authorities to check the population register in Turkey and to contact the applicant’s sister in Germany in order to verify the applicant’s travel route. Both parties, in particular the authorities, ought to have sought to contribute more to the enlightenment of the case.

The High Court concluded that there were no other grounds for doubting the veracity of the applicant’s account than the fact that it was not unusual that erroneous or exaggerated information was provided in support of asylum applications. It would be particularly unfortunate if this general experience were to harm a person who rightfully applies for asylum, especially when there is question of a risk of such serious infringements as in the present case. The credibility of the applicant’s account was supported by what was generally known about the human rights situation of members of the Kurdish opposition in Turkey and by the fact that she had maintained her version since she arrived in Norway. It was further supported by the High Court’s own impression of the applicant’s witness evidence and that of Ms Haabeth. Bearing in mind the lack of information in the case, the High Court found, on the balance of probabilities, that the applicant had given a correct account. Accordingly, the Ministry of Justice’s decision of 6 August 1999 was on essential points based on an erroneous assessment of the facts and was therefore to be quashed as being invalid ( ugyldig ).

The immigration authorities did not appeal against the above judgment.

Subsequently, in connection with the Aliens Appeals Board’s handling of the case, it received new information from German immigration authorities, notably copies of two administrative and four judicial decisions and ID papers. It appeared that the applicant had arrived in Germany in September 1991 and had applied for asylum together with her husband and children. The application had been examined on 27 January and 19 February 1998 and had been rejected each time. Both decisions were challenged before the courts which found no reason for setting them aside. The last such judgment was dated 19 August 1998. The applicant, who had lived with her husband and children during these proceedings, left Germany in June 1998.

On 24 September 2001 the applicant was confronted with the above information provided by the German authorities. She acknowledged the facts in question but maintained that she was in need for protection vis-à-vis the Turkish authorities.

Against this background, the Alien Appeals Board decided on 29 January 2002 to reject the applicant’s appeal against the Ministry of Justice’s decision of 6 August 1999. The Board considered it decisive that the new elements referred to above had emerged after the High Court had examined the case. They revealed that the applicant’s statements on central points had been positively inaccurate. She had claimed that Turkish police had exposed her to infringements at a time when she actually resided as an asylum seeker in Germany. She had submitted that her treatment at the hands of the Turkish police was linked to her husband’s disappearance, despite the fact that she had arrived with him in Germany and had lived with him during her entire stay in that country. While the applicant, when faced with the new information, had conceded that she had lied to the Norwegian authorities, she maintained nevertheless that she had been exposed to the alleged infringements and that these had occurred at an earlier point in time which corresponded to her arrival in Germany in 1991. In the light of the circumstances of the case, the alteration made by the applicant to her story on this point did not appear credible. Although it would have been normal to inform the German authorities about the alleged infringements because of their gravity, she did not do so. It would therefore seem a very likely possibility that such infringements never occurred.

On 9 February 2002 the registrar received from the Agent of the Government a letter stating that, by virtue of the High Court’s judgment of 12 March 2001, the Court’s indication under Rule 39 no longer applied or, in the alternative, requesting the Court to lift the measure. On 14 February 2002 the applicant’s lawyer submitted comments in reply and indicating that on 4 February 2002 he had complained to the Aliens Appeals Board disputing that it was competent to take the decision of 29 January 2002.

COMPLAINT

The applicant complained that her expulsion to Turkey would violate Article 3 of the Convention. She further alleged that the authorities decision to deport her before she had been able to exercise effective judicial remedies violated Article 13 of the Convention.

THE LAW

1 . The applicant alleged that, if effected, her expulsion to Turkey would expose her to a real risk of ill-treatment in violation of Article 3 of the Convention, which reads:

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

The applicant submitted that the Alien Appeals Board’s decision of 29 January 2002, upholding the Ministry of Justice’s rejection of her asylum application of 6 August 1999, was invalid. The latter decision had been annulled by the High Court’s judgment of 12 March 2001. In the absence of a new decision at the first administrative level or an appeal against the decision of 6 August 1999, the Board had no competence to take a decision in the case.

As regards the substance of the impugned decision, the applicant stressed that, save for one exception, the information that she had provided to the Norwegian authorities about the infringements committed against her in Turkey was correct. The exception concerned solely the time at which the events had occurred. In fact, the acts of rape committed against her had occurred during the period from 1988 to 1990 (not between 1994 and 1996 as previously stated), and the infringements committed against the husband had taken place in 1988. Neither the applicant nor her children had seen or heard anything from her husband for more than 3 years.

The applicant found it understandable that her credibility had been weakened by her lies. However, the reason why she had not informed the German authorities about the ill-treatment committed against her was that their focus was on her husband’s situation and that members of her family, including the husband, were unaware of what had happened to her. The applicant thought it would have been sufficient for obtaining residence permit in Germany that the husband inform about his own need for protection. Her fear of shame made it unthinkable for her to tell her story. The applicant requested the Court to regard it as established that she on several occasions had been exposed to acts of rape committed by the Turkish police before she left the country. As to her credibility, she referred to the assessment made by Ms Haabeth, who had treated her for post traumatic stress syndrome.

The Court notes that the applicant has disputed the validity of the Alien Appeals Board’s decision of 29 January 2002 which, in effect, sets aside the High Court’s judgment of 12 March 2001 in as much as it upholds the Ministry of Justice’s initial rejection of 6 August 1999. The decision of 29 January 2002 was based on the discovery of new facts showing that the applicant had misled the relevant authorities throughout the proceedings leading to the High Court’s judgment of 12 March 2001. It is not clear from the material submitted to the Court that the applicant can be deemed to have exhausted all effective domestic remedies for the purposes of Article 35 § 1 of the Convention. Even assuming that she has fulfilled this condition, the Court considers that the complaint has to be declared inadmissible as being manifestly ill-founded.

The Court will not speculate on what the outcome of the High Court proceedings would have been had the latter been aware of the facts discovered subsequently by the immigration authorities and acknowledged by the applicant. The Court will assess the matter for itself. However, in doing so it will, in accordance with its settled practice, have particular regard to the establishment of facts made by the national authorities.

The Court observes that an important feature of the present case is the total absence of documentary evidence supporting the applicant’s own account as to the particular circumstances leading to her departure from Turkey. Up until the High Court’s judgment of 12 March 2001, this was indeed one of the main reasons for the national administrative and judicial authorities’ rejection of her case. Also the High Court stressed the absence of documentary evidence and that it had little to go by. A crucial consideration for the High Court’s conclusion in her favour was its finding that her version appeared credible against the background of what was generally known about the situation of members of the Kurdish population in Turkey. In this respect the High Court had regard not only to its own impression from the applicant’s appearance before it but also to its being satisfied that in all essential aspects her account had been consistent throughout the domestic proceedings.

However, the information discovered by the Aliens Appeals Board, and confirmed by the applicant, after delivery of the High Court’s judgment, shows that she had consistently given misleading information to the Norwegian authorities and the European Court.

The Court, like the Aliens Appeals Board in its decision of 29 January 2002, is not convinced by the applicant’s explanation for why the alleged ill-treatment against her was not invoked before the German authorities to underpin her own and her husband’s asylum application, rejected by two administrative and four judicial decisions.

The Court is further unable to accept the applicant’s submission that the flaw in her account had a bearing only as to the time of the alleged events. In the Court’s opinion, it also affects the substance. It recalls that an essential consideration for the High Court’s assessment of the risk faced by the applicant related to her husband’s alleged activities and disappearance in Turkey and the assumption that the Turkish authorities might harass her in order to find him were she to return. However, the new information revealed that when, or shortly before, the applicant arrived in Norway, her husband was not under ground in Turkey but had been living with her in Germany for the last 7 years. This change to her previous version of the factual background completely undermines her claim upon arrival in Norway that her need for protection was related to her husband’s political activities in Turkey. No information has been submitted which suggest that this situation has changed since.

In the view of the Court, the revelation gives rise to serious doubts as to the applicant’s general credibility and overshadows her entire story.

Against this background, the Court finds no appearance of substantial grounds for believing that the applicant, were she to be expelled to Turkey, would face a real risk of ill-treatment in violation of Article 3 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 34 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2 . Initially the applicant complained that the decision of the Norwegian authorities to deport her before she had been able to exercise effective judicial remedies violated her rights under Article 13 of the Convention. However, the Court observes that the applicant was able to have her case heard before the City Court and the High Court in two consecutive proceedings, one concerning her request for an interim order for stay of execution of the expulsion and another concerning the main case. She moreover does not seem to pursue this complaint before the Court, which in the circumstances finds no appearance of a violation of the Convention on this point.

It follows that this complaint also is manifestly ill-founded within the meaning of Article 34 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President