THIRD SECTION

Application no. 64047/10 M.M.R. against the Netherlands lodged on 4 November 2010

STATEMENT OF FACTS

The applicant, Ms M .M.R. , claims that she is a national of the Democratic Republic of the Congo , who was born in 1988 and lives in Arnhem . She is represented before the Court by Mr G. Vergouw , a lawyer practising in Arnhem .

A. The circumstances of the case

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

In 2010 the applicant fled from her native Democratic Republic of the Congo (DRC) to the Netherlands where she applied for asylum, submitting the following account.

She hailed from Bukavo , the capital of South Kivu province in the east of the DRC. She was of Banyamulenge origin. In August 2000, her father had been killed in a fight with members of an angry crowd who had entered the applicant ’ s family home in Bukavo , screaming that the Banyamulenge should leave the country. The applicant ’ s mother had fled into the woods, together with the applicant and one sister. The applicant ’ s older sister and two of her brothers had also fled, but after the incident the applicant had not seen 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 had entered the applicant ’ s home, initially looking for Banyamulenge men and/or boys. Having found none, these men had raped the applicant as well as her mother and sister. Afterwards, the applicant had been taken away to a house, where she had found other women and where she had been raped and ill-treated on a daily basis. After four months, in January 2005, a man acting at the request of Papa K. , had managed to free her and had taken her to the house of Papa K. . After she had recovered, the applicant, at the instigation of Papa K. , had been moved to her grandparents ’ house in the Nguba neighbourhood in Bukavo . In 2007, anti- Banyamulenge sentiments in the Congolese population had resurfaced again. The applicant had been hassled at school, but eventually graduated. For a while, nothing major had happened. Around the end of January 2009 or early February 2009, unknown men had entered her grandparents ’ home, looking for Banyamulenge men and/or boys. They had raped her grandmother, chopped off an arm and a leg of her grandfather because he had refused to rape the applicant, raped the applicant, killed both her grandparents and taken the applicant with them. Like before, the applicant had been taken to a house where there were other women and girls and where she had been sexually abused and ill-treated every second or third day. On 6 July 2010, a man acting for Papa K. had come to that house and had taken the applicant with him.

On 13 July 2010, the applicant applied for asylum in the Netherlands . On 26 July 2010, the applicant was interviewed about her identity, nationality and travel route ( eerste gehoor ). On 27 July 2010, the applicant submitted her corrections and additions ( correcties en aanvullingen ) to the record drawn up of this first interview.

On 28 July 2010, the applicant was interviewed about her asylum motives ( nader gehoor ). On 29 July 2010, the applicant submitted her corrections and additions to the record of the second interview.

By letter of 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 declaration of loss of documents (“ attestation de perte des pièces ”) submitted by the applicant was found to be a forgery. This declaration concerning the applicant ’ s loss of her voter ’ s card ( carte d ’ électeur ) had not been drawn up by the competent authority. As the applicant had given incorrect statements about this document and continued to claim that it was authentic, the Minister considered that serious doubts had arisen as to her stated 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. Furthermore, the Minister considered it odd that for someone who had lived virtually her entire life in Bukavu , the applicant had hardly any basic knowledge about her hometown. For instance, she did not know the former colonial name of the town, she did not know who the mayor was, that a khadafi is a petrol seller, had to think about the name of the cathedral and the name of the 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 hailed from Bukavu . As she had thus failed to establish her identity, her asylum claim, which was based on her having lided in Bukavu , was found to lack credence.

In her written comments ( zienswijze ) of 3 August 2010, the applicant maintained her account. She claimed that the Minister had neglected to specify which authority should have issued the declaration of loss of a voter ’ s pass. The applicant did not know the colonial name of Bukavu because this name had been abandoned in 1954 and was no longer in use. Furthermore, people never called Bukavu by its former colonial name and were reluctant to say the name. That she did not know who the mayor of Bukavu was, was not very odd as many people do not know the name of their mayor. Due to the security situation, the applicant had stayed at home most of the time and, therefore, was unable to give details of the situation in Bukavu before January 2009. She further argued that if one does not buy petrol, it is not strange that one would not know that a khadafi is a petrol seller. She also pointed out that most inhabitants of Bukavu refer to the cathedral as ‘ the cathedral ’ ; it is not called by its official name. The fact that the applicant had had to think about the name of the national anthem, and was not able to think of it immediately, did not mean that she did not hail from Bukavu . The applicant further requested to have a language analysis conducted to prove her origin.

On that same date, the Minister refused the applicant ’ s asylum application, finding that the applicant had failed to establish her identity and nationality and that there was no necessity for a language analysis test.

On 5 August 2010, the applicant filed an appeal with the Regional Court ( rechtbank ) of The Hague , sitting in Arnhem . At the same time, she requested that court to issue a provisional measure ( voorlopige voorziening ) to the effect that her expulsion would be suspended pending the outcome of the appeal procedure. Referring to a newspaper article, the applicant claimed that the declaration of loss of documents which she had submitted had been drawn up by a competent authority. She further referred to her written comments of 3 August 2010.

On 20 August 2010, a hearing took place before the Regional Court . At this hearing, the applicant ’ s sister Ms E.M. appeared. She was living in the Netherlands and had obtained Netherlands nationality. She had been tracked down by the Dutch Refugee Council ( VluchtelingenWerk Nederland ). The purpose of her appearance was to prove the applicant ’ s identity and nationality. To this end, Ms E.M. 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 to the Netherlands .

By judgment of 27 August 2010, the provisional-measures judge of the Regional Court rejected the applicant ’ s appeal and the pertaining request for a provisional measure. The court accepted the Minister ’ s decision and the reasons given by the Minister in support of his conclusion that the applicant ’ s stated identity and account lacked credence. In this respect the court recalled that the applicant, in her first interview, had been unable to say anything about the history of Bukavu , had not known what a khadafi was or what a licence plate looked like, had been unable to state immediately the name of the DRC national anthem even though she had an academic education, and had not known the name of the Bukavu cathedral although she claimed that she had lived in that town her whole life. No relevance was given to the sudden appearance and statement of the applicant ’ s sister Ms E.M. .

On 31 August 2010, the applicant appealed the judgment to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ; “the Division”), arguing essentially that the Regional Court should have taken into account the fact that the applicant had found her sister again whose DRC citizenship had been accepted by the Netherlands authorities. She further argued that she had demonstrated her identity and nationality and that, based on the fact that she hailed from South Kivu, she should be provided with an asylum permit as the general security situation in South Kivu warranted the granting of international protection.

On 28 October 2010 the Division rejected the applicant ’ s further appeal on summary grounds for not raising any points of law and upheld the impugned judgment of the Regional Court .

B. Developments subsequent to the lodging of the application

On 10 November 2010 the President of the Section to which the case had been allocated decided, at the request of the applicant , 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 applicant to the DRC (Rule 39 of the Rules of Court). The Acting President further decided to request the Netherlands Government to submit factual information.

On 12 May 2011 the Government submitted the information requested and on 30 June 2011 the applicant submitted her comments in reply to the information provided by the Government.

COMPLAINT

The applicant complains that there are substantial grounds for believing that she will be subjected to treatment contrary to Articles 2 and/or 3 of the Convention if she were expelled to the Democratic Republic of the Congo .

QUESTIONS TO THE PARTIES

1. Given that the Government do not attach credence to the applicant ’ s stated identity and nationality, to what country do the Government intend to expel the applicant?

2. In case the Government intend to remove the applicant to the Democratic Republic of the Congo , would she - in the light of her claims and her sister ’ s asylum account – face a real risk of being subjected to treatment in breach of Article 3 of the Convention?