THIRD SECTION

Application no. 20651/11 H .N against the Netherlands lodged on 31 March 2011

STATEMENT OF FACTS

The applicant, Ms H .N. , is an Afghan national, who was born in 1988 and lives in Oosterhout . She is repres ented before the Court by Mr J. Verstrepen , a lawyer practising in Oosterhout .

A. The circumstances of the case

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

The applicant fled in November 2010 from her native Afghanistan to the Netherlands where she applied for asylum, submitting the following account.

The applicant used to live with her father , step-mother and two half ‑ sisters north of Kabul. She was treated badly by her father and step ‑ mother, who used her as a servant. She had never been to school and thus illiterate. Her father had been working as a driver for a commander. This commander used to work for the Taleban , but he had changed sides and now worked for the government. He was well-known locally and very powerful. He was married and had children. The applicant ’ s father had decided to marry the applicant off to this commander. She had not agreed and had contemplated suicide. On one day , her father , step-mother and half ‑ sisters had left the house to attend a funeral of a relative of her step ‑ mother. The applicant had seized her chance and had fled , taking the money that the commander had paid for her with her. She had taken a bus to Mazar -e-Sharif , where a maternal uncle lived. Although this uncle had disapproved of the applicant ’ s running away , he had accepted that she could not return and had helped her to leave the country , using the money the applicant had taken with her.

On 5 January 2011 the applicant applied for asylum in the Netherlands . On that same date, the applicant was interviewed about her identity, nationality and travel route. On 7 January 2011 the applicant was interviewed about her asylum motives. The applicant claimed that upon return she would be killed or maimed by her father for having brought shame on the family honour.

On 10 January 2011 the applicant submitted her corrections and additions to the second interview.

By letter of 11 January 2011 the Minister for Immigration and Asylum (Minister voor Immigratie en Asiel ; Minister) notified the applicant of his intention ( voornemen ) to reject her asylum application. It was considered that the applicant had provided insufficient detailed information about her journey, and that this failure was attributable to her. The applicant had claimed that she had flown from Mazar -e-Sharif to Iran and that she had not understood the language spoken on the flight. As only Iranian and Afghan airline companies flew on that route, it was not believed that the crew would not have spoken Dari or Farsi. It was further not believed that the applicant did not know where in Iran she had landed, given that she had then stayed with the family of the travel agent for 11 days and could have asked them where she was. As a result, the credibility of her statements was impaired and in these circumstances the applicant bore a heavier burden of proof to establish the plausibility of her asylum account. Her asylum account should not contain any gaps, vagueness, illogical twists or inconsistencies as regards the relevant details. It should, on the contrary, be positively convincing. It was concluded that the applicant ’ s account was not positively convincing. It was expected that she should have had more knowledge about the commander than she claimed to have, given that, as she had submitted, he was a good friend of her father and he was well-known locally. The applicant had failed to give the name of the commander ’ s wife and children. Furthermore, she could not tell what kind of work he did for the government. She had failed to make consistent statements about the question whether or not a date for her engagement had been set yet. She had claimed that when she left home, she had not been informed of the date. But her maternal uncle had told her that he had been invited, so a date must have been set. She had given different dates on when she learned that 15,000 US dollars (USD) had been paid for her. It was further not considered credible that the applicant would have been able to travel unaccompanied to a different province, that her father would have left her alone in the house when he knew she was against the marriage, and that her uncle would have helped her flee the country instead of returning her to her father ’ s house. As her account was not considered credible, the applicant had failed to make a plausible case for believing that she would be at risk of violence in Afghanistan .

In her written comments ( zienswijze ) of 12 January 2011 the applicant maintained her account and sought to dispel the doubts cast on the credibility of her account. She maintained that she had not understood the language spoken aboard the flight to Iran but that she had told the Dutch authorities about the lay-out of the plane and of the colours of the uniforms of the stewardesses. She further claimed that one could not expect of an illiterate person like herself to remember a flight number. She further claimed that in the Afghan culture in which she had been brought up it was not strange that she did not possess more knowledge about the commander . She had been kept at home and had only seen the commander when she had served him tea in the course of his visits to her father. She further maintained that she had not been informed of the date set for her engagement and had only found out through her uncle that a date had in fact been set. She had heard her father and step-mother talk of USD 15,000 but did not know that she had taken that full amount with her until her uncle had counted it. Finally, she claimed that it was possible for women to travel unaccompanied by men, as long as they did so in a group. The applicant pointed to an official report on Afghanistan ( algemeen ambtsbericht ) of the Netherlands Ministry of Foreign Affairs. She further claimed that under Article 15 (c) of the EU Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country national or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“Qualification Directive”), she should be granted an asylum permit as the general situation in Afghanistan fell into the scope of this Article.

On 13 January 2011 the Minister refused the applicant ’ s asylum application , finding that she had failed to dispel the doubts cast on the credibility of her account. The fact that the applicant is an illiterate woman , did not justify her failure to give a detailed description of her travel route from Afghanistan to Iran . According to the Minister it was not unreasonable to expect that the applicant would be able to give more details about the commander. She had claimed that she had known the commander for a very long time , he and her father had been friends for over 15 years , her father had been working for him for a long time and she had said that in a small village everybody knew everything of each other. It was considered inconsistent that the applicant first had stated that she did not know if a date had been set for her engagement , whilst later she claimed that her uncle had told her that a date had been set. The fact that the applicant had travelled by bus in which both men and women were travelling , is a different situation than described in the official report of the Ministry of Foreign Affairs. Thus , the applicant ’ s asylum claims lacked credence and therefore the applicant had failed to establish that she would be exposed to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention if she would be removed to Afghanistan . The mere fact that the applicant is a woman , is not sufficient to establish this risk. The Minister further held that the general situation in Afghanistan did not f all within the scope of Article 15 (c) of the Qualification Directive.

On 14 January 2011 the applicant filed an appeal with the Regional Court ( Rechtbank ) in The Hague , sitting in Den Bosch. At the same time she requested that court issued a provisional measure ( voorlopige voorziening ) to the effect that her expulsion would be suspended pending the outcome of the procedure, in a separate request for provisional measures.

By judgment of 15 February 2011 the Regional Court dismissed the appeal and the request for a provisional measure and upheld the impugned decision.

On 22 February 2011 the applicant appealed the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State; “the Division”), arguing essentially that her account did not lack credence and that she she would be exposed to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convent ion if she would be removed to Afghanistan.

On 17 March 2011 the Division dismissed the applicant ’ s appeal on summary grounds for not raising any points of law. No further appeal lay against this decision.

On 21 March 2011 the applicant was placed in aliens ’ detention for the purpose of her expulsion to Afghanistan .

B. Developments subsequent to the lodging of the application

On 4 April 2011 the Acting President decided, at the request of the applicant , to indicate to the Government of the Netherlands 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 Afghanistan (Rule 39 of the Rules of Court).

On the same date the President of the Section requested the applicant to submit substantiation of her account in the form of , for example , a letter from her uncle.

By letter of 29 April 2011 the applicant submitted a letter from her uncle.

COMPLAINTS

The applicant complains under Article 3 of the Convention that she runs a real and personal risk of a treatment contrary to this Article if expelled to Afghanistan due to the fact that she has brought shame upon the honour of the family.

Finally, the applicant complains under Article 13 of the Convention that she did not have an effective remedy in Dutch national law in terms of her complaint under Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. In the light of the applicant ’ s claims and the documents which have been submitted , would she face a risk of being subjected to treatment in breach of Article 3 of the Convention if expelled to Afghanistan ?

2. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 3, as required by Article 13 of the Convention?