THIRD SECTION

DECISION

Application no. 43092/16 A.G. and M.M . against the Netherlands

The European Court of Human Rights (Third Section), sitting on 26 June 2018 as a Committee composed of:

Dmitry Dedov, President, Alena Poláčková , Jolien Schukking , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 21 July 2016,

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 factual information and observations submitted by the respondent Government and the comments and observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms A.G. (“the first applicant”) and Mr M.M. (“the second applicant”), are Afghan nationals who were born in 1993 and 1991 respectively and live in Bergum . The President decided not to disclose the applicants ’ identities to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Ms P. Kramer- Ograjensek , a lawyer practising in Sittard .

2. The Dutch Government (“the Government”) were represented by their Agent, Ms B. Koopman , and their Deputy Agent, Ms K. Adhin , both of the Ministry of Foreign Affairs .

A. The circumstances of the case

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

4. The applicants entered the Netherlands on 18 November 2015. After lodging their asylum applications they were interviewed separately by the immigration authorities.

5. During their registration interviews ( gehoor aanmeldfase ) the applicants indicated that they were married to each other. In their subsequent first asylum interviews ( eerste gehoor ), however, they said that they were not married, but that they had been in a relationship since 30 April 2015. Further interviews ( nader gehoor ) were held on 19 December 2015.

6. The first applicant stated in her interview of 19 December 2015 that she and her family were Afghan nationals from Herat, Afghanistan, but that they had moved to Iran when she had been three years old and that they had resided there unlawfully. She had been married off to her cousin without her consent and had been having an extramarital relationship with the second applicant by whom she had become pregnant.

7 . As regards her marriage to her cousin she stated that she did not remember when the wedding had taken place. When asked about the events of that day she stated that an imam had officiated at the wedding in a religious ceremony in the presence of both her cousin ’ s and her family. After marrying her cousin, to whom she interchangeably referred during the interview as her husband and her fiancé, she had not moved in with her in-laws but he had stayed with her and her family once a month; they had shared a bedroom but their marriage had not been consummated as a wedding reception had not yet taken place. She did not remember who the witnesses at her wedding ceremony had been and did not know when the wedding reception had been scheduled to take place.

8. She had met the second applicant on 30 April 2015 in an alley close to their respective homes; they had liked each other. She had seen him two or three times before. They had exchanged telephone numbers. The second applicant had called her and they had kept in touch via telephone. On 27 May 2015 they had met at the second applicant ’ s home and had had sexual intercourse. Two months later she had discovered that she was pregnant. She had revealed her pregnancy to her mother, who had warned her that her father, brother and cousin would kill her. On 2 September 2015 the first applicant had left the family home and gone to Tehran with the second applicant. She had informed her sister that she was in Tehran and one day, when she and the second applicant were in a park, her cousin had attacked them, but they had managed to escape. Although she did not remember who had told her, she had heard that an uncle in Afghanistan had threatened to harm her if she returned to that country.

9 . The se cond applicant stated that he had been born in Herat, Afghanistan and had moved with his family to Iran when he had been six years old. He had met the first applicant in an alley close to their respective homes, and he had given her his telephone number on 30 April 2015 after which she had called him and they had started having telephone conversations. They had had sexual intercourse on 27 May 2015. He did not remember whether he had seen the first applicant between that day and 2 September 2015, the day they had fled to Tehran. Two months after they had had sexual intercourse, the first applicant had told him that she was pregnant. He had informed his mother, who had told him that they should flee and that he would be hanged if the Iranian or Afghan authorities discovered what he had done and that they would punish the first applicant by stoning her. The first applicant ’ s cousin had attacked them when they had been in a park in Tehran but they had managed to escape with the help of bystanders. They had left Iran shortly afterwards. They had not been able to get married whilst in Iran or in the Netherlands.

10. On 21 December 2015 the Deputy Minister of Security and Justice ( Staatssecretaris van Veiligheid en Justitie – hereinafter “the Deputy Minister”) notified the applicants of his intention to reject their asylum requests. The applicants were given the benefit of the doubt as regards the credibility of their statements concerning their personal details and nationality. However, the Deputy Minister disbelieved the applicants ’ claims that the first applicant was married to her cousin and that they were having an extramarital relationship. In that connection account was taken, inter alia , of the fact that the applicants ’ asylum accounts did not fully corroborate each other and were sometimes even contradictory; that the first applicant had changed her statement on certain relevant points; and that her statement contained elements whose accuracy was doubtful in view of what was known about Afghan culture. Therefore, the supposed risks the applicants claimed they would run in Afghanistan were also not considered credible.

11. By decisions taken on 23 December 2015 the Deputy Minister, confirming the assessment in his notices of intent, rejected the applicants ’ asylum applications. The applicants lodged an appeal against these decisions with the Regional Court ( rechtbank ) of The Hague.

12. Following a hearing held on 22 January 2016 in the presence of the applicants and their legal counsel, the Regional Court dismissed their appeal on 2 February 2016. It found that the Deputy Minister had on good grounds considered that the applicants ’ statements of the reasons for their asylum requests lacked credibility.

13. A daughter was born to the applicants on 2 March 2016.

14. On 10 March 2016 a further appeal lodged by the applicants was dismissed by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ).

15. Before all instances the applicants were assisted by legal counsel.

16. According to information contained in the applicants ’ application to the Court, they had recently received documents from Iran – relating to threats made by the first applicant ’ s family to the family of the second applicant – which supported their account. They intended to submit these documents in new asylum requests to be lodged by them. The Court has been informed that new requests have indeed been lodged, but on different grounds (see paragraph 21 below).

B. Developments subsequent to the lodging of the application

17. The applications were lodged with the Court on 21 July 2016. On 20 September 2016 the applicants requested that the Court indicate an interim measure, under Rule 39 of the Rules of Court, to halt their removal to Kabul, Afghanistan, which was scheduled for 26 September 2016.

18. On 22 September 2016 the duty judge decided to indicate to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicants to Afghanistan (Rule 39 of the Rules of Court) until 21 October 2016. At the same time a request for certain factual information was put to the Government (Rule 54 § 2 (a) of the Rules of Court).

19 . In their reply of 5 October 2016 the Government submitted that, following a presentation of the applicants and their minor child in person to the Embassy of Afghanistan in the Netherlands, that Embassy had confirmed the applicants ’ Afghan nationality, upon which the Netherlands ’ Repatriation and Departure Service ( Dienst Terugkeer en Vertrek ) had requested and obtained permission from the Afghan Ministry of Refugees and Repatriation for the applicants ’ removal to Afghanistan. The Government further stated that in the system of the Repatriation and Departure Service the applicants were registered as “partners” and as parents of their minor child. They also added that in the applications for a laissez-passer on behalf of the applicants, lodged at the Embassy of Afghanistan by the Repatriation and Departure Service before they were presented in person to that Embassy, the applicants ’ civil status had been indicated as “single”. However, in accordance with agreements with the Afghan authorities, instead of a laissez-passer a standard European Union travel document (otherwise known as “EU Status” documents) for expulsion of third-country nationals was used for the applicants ’ planned removal. Moreover, in the notification to the Afghan Ministry of Refugees and Repatriation the applicants and their child had been referred to as “family”, “partner” and “daughter” respectively. They lastly stated that in the international birth certificate of the child, the applicants were indicated as mother and father and that this birth certificate had been joined to the applications for a laissez-passer.

20. On 6 October 2016 the duty judge decided to indicate to the Government not to expel the applicants to Afghanistan for the duration of the proceedings before the Court (Rule 39 of the Rules of Court).

21 . Meanwhile, on 16 September 2016, the applicants lodged a new request for asylum in support of which they claimed that they had converted to Christianity. The Court has not been informed of the outcome of that request.

COMPLAINT

22. The applicants complained that removal to either Iran or Afghanistan would expose them to a real risk of being subjected to treatment in breach of Article 3 of the Convention as they feared they would fall victim to an honour killing by their families or be criminally prosecuted by the authorities for their extramarital relationship.

THE LAW

23. The applicants complained that their return to Iran or Afghanistan would involve a violation of Article 3 of the Convention. This provision reads as follows:

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

A. The parties ’ submissions

1. The Government

24. The Government submitted that the onus was on the applicants to state truthfully about their reasons for seeking asylum and their civil status. They added that, had the applicants been legally married, their civil status would have been communicated to the Afghan authorities as “married”, and in the case of a traditional or religious ceremony as “partners”. The applicants ’ civil status had been taken into account prior to their scheduled removal and the Government did not dispute that the applicants and their daughter constituted a family and that the second applicant was the child ’ s father. They further noted that on the EU travel documents the applicants were indicated as a family and as partners and that the daughter ’ s last name, as indicated on her international birth certificate, was that of the second applicant. Consequently, nowhere on the travel documents that would be seen by the Afghan border control authorities was the applicants ’ civil status indicated as “single”.

25 . Having regard to the implausibility of the applicants ’ accounts, the fact that they would be returned as a family, as well as the absence of any indication on their travel document that they were “single”, the Government were of the view that there were insufficient grounds for believing that the applicants would face a real risk of being subjected to treatment in violation of Article 3 of the Convention if their removal to Afghanistan were to be enforced.

2. The applicants

26. The applicants reiterated the statements they had given during the asylum proceedings. They added that their families were aware of the circumstances that had led them to leave Iran and that upon their return to Afghanistan or Iran it would be obvious that their child had been born from an adulterous relationship. In addition, the applicants also ran the risk of inhuman and degrading treatment upon return to Afghanistan or Iran due to them having converted to Christianity.

B. The Court ’ s assessment

1. General principles

27. The general principles concerning Article 3 in expulsion cases have been set out in, amongst other authorities, F.G. v. Sweden ([GC], no. 43611/11 , §§ 117-127, ECHR 2016) and, more recently, in J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 79-90, 23 August 2016).

2. Application of the general principles to the present case

29. The Court next observes that the Government have questioned the credibility of the applicants ’ asylum statements, as did the national authorities in the Netherlands. In this respect the Court notes that the national authorities disbelieved the applicants ’ claims that the first applicant was married to her cousin and that they were having an extramarital relationship. In that connection account was taken, inter alia , of the fact that the applicants ’ asylum accounts did not fully corroborate each other and were sometimes even contradictory; that the first applicant had changed her statement on certain relevant points; and that her statement contained elements whose accuracy was doubtful in view of what was known about Afghan culture.

The Court further observes in this context that the first applicant interchangeably referred to her cousin as her husband and then as her fiancé, and that she gave vague information about her alleged engagement or wedding to her cousin – she was unable to tell when the supposed ceremony had taken place and who attended (as witnesses or guests) and had changed her statements regarding whether, and if so when, a second wedding ceremony had taken place – while the second applicant was unable to recount significant aspects of the applicants ’ encounters (see paragraphs 7 - 9 ). The Court considers that the applicants have not succeeded, either at the national level or in the present proceedings, in providing a satisfactory explanation for the discrepancies and inconsistencies found. In view of this and of the thorough examination of the applicants ’ claims by the domestic authorities, the Court cannot but agree with them and the Government in finding that the applicants ’ account lacks credibility.

30. Moreover, it is important to note that, although they disputed the veracity of the applicants ’ account, the Government did not contest that the applicants are in a relationship, that they are the parents of the child that was born to them in the Netherlands and that, together, they form a family unit, with the child bearing the second applicant ’ s surname. Indeed, the Government intend to remove them as a family unit, with travel documents in which the applicants are indicated as “family” and “partners” and that therefore do not constitute any confirmation of, or lend credibility to, the claims put forward by the applicants in support of their request for asylum. While it is true that, in the application for laissez-passers the applicants ’ civil status was indicated as “single” (see paragraph 19 above), the Court notes that those requested travel documents were never issued.

31. In the light of the foregoing, the Court considers that substantial grounds have not been shown for believing that, due to the alleged adulterous nature of their relationship from which a child has been born, the applicants would run a real risk of treatment contrary to Article 3 if returned to Afghanistan or that the Dutch authorities failed duly to assess the risk elements arising from a removal of the applicants to Afghanistan.

32. Consequently, this part of the application should be dismissed as manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

33. To the extent that the applicants should be understood as wishing to complain in the present proceedings that their removal to Afghanistan would amount to a violation of Article 3 of the Convention also on account of their alleged conversion to Christianity, the Court notes that – in so far as it has been informed – the proceedings on the applicants ’ new asylum requests based on that conversion are still pending. Accordingly, any such complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

34. Finally, bearing in mind that there are no indications that the Dutch authorities are intending to remove the applicants and their child to Iran, the Court considers that the applicants cannot claim to be a victim within the meaning of Article 34 of the Convention as regards their complaint that treatment in violation of Article 3 would await them in Iran. It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

35. 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 July 2018 .

FatoÅŸ Aracı Dmitry Dedov              Deputy Registrar President