THIRD SECTION

Application no. 66848/10 A.A. against the Netherlands lodged on 12 November 2010

STATEMENT OF FACTS

THE FACTS

The applicant , Ms A.A. , is a Turkish national , who was born in 1977 and lives in the Netherlands . She is represented before the Court by Mr A.W. Eikelboom , a lawyer practising in Amsterdam .

The circumstances of the case

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

The applicant fled on 6 May 2007 from Turkey to the Netherlands where she applied for asylum , submitting the following account.

In November 1998 the applicant had participated in political activities at her school and attended a press conference of an opposition magazine. At this press conference she had been arrested by police and detained on suspicion of aiding and abetting an illegal left-wing organisation. During her detention she had been ill-treated and tortured: she had inter alia been administered electric shocks and been subjected to beatings which had resulted in a broken rib and broken fingers on her left hand. She had been released on 3 or 4 March 1999 and had eventually been acquitted. After her release she had been regularly bothered by police in the form of repeated visits , repeated arrests followed by release several hours later , repeated house searches , etc.

In October 1999 the applicant had been arrested once more in connection with a visit of a European delegation to Turkey . She had been released after four days. The police had continued to bother her. In 2000 the applicant had started studies at a university and become politically active at university by attending meetings and demonstrations of human rights organisations. Due to those activities the display of negative police attention towards her had increased notably , which attention included the applicant being subjected to police visits at an increased rhythm.

Whilst at university the applicant met her future husband. They married in 2002. Her husband had been active for Dev Sol ( Devrimci Sol; Revolutionary Left) , a prohibited left-wing political opposition party and considered a terrorist organisation by the Turkish Government. He had been convicted several times and lengthy prison sentences had been imposed on him. The Turkish authorities regarded the applicant ’ s husband as a left ‑ wing terrorist. In May 2003 , having been provisionally released , her husband had managed to flee from Turkey to the Netherlands where he applied for asylum.

After her husband had fled Turkey , the applicant ’ s harassment by the police had intensified in that the frequency increased of the searches of her house as well as of her being apprehended and taken to the police station for questioning about her husband. In order to gain some relief , the applicant had moved back in with her parents. This move had indeed caused some relief as regards the harassment , but the applicant had continued to receive regular visits from the police. As her life was becoming more and more unbearable , she had decided to leave the country and join her husband in the Netherlands .

The asylum application of the applicant ’ s husband was rejected on 12 December 2006. On account of his activities for Dev Sol , Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) was held against him. On the same date her husband had been declared an undesired alien ( ongewenst vreemdeling ) entailing the imposition of an exclusion order. However , the Netherlands authorities did acknowledge that her husband ’ s return to Turkey would expose him to a real risk of treatment in violation of Article 3 of the Convention as he was suspected of involvement in terrorist activities.

On 13 May 2007 (after an initial , unsuccessful attempt to travel to the Netherlands) the applicant entered the Netherlands where on 23 May 2007 she notified the authorities that she intended to apply for asylum , which she did on 6 August 2007. On 7 August 2007 she was interviewed ( eerste gehoor ) about her identity , nationality and journey to the Netherlands . On 9 August and 20 September 2007 she was interviewed about her asylum motives ( nader gehoor ). On 17 October 2007 the lawyer assisting the applicant in these proceedings submitted corrections and additions to the report drawn up of the second interview.

By letter of 4 July 2008 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) notified the applicant of her intention ( voornemen ) to reject the asylum application. Although the events which the applicant had described were found credible , the Deputy Minister considered that – having regard to the fact that the police harassment had continued for about nine years with more or less the same intensity – it could not be said that the situation had become untenable for the applicant. The Deputy Minister noted in this respect that the applicant had declared that one of the reasons for her departure was that she wanted to see her husband again and that this was impossible in Turkey . The Deputy Minister further considered that the applicant had failed to establish that the Turkish authorities were unable or unwilling to protect her against police harassment. In respect of the applicant ’ s reliance on Article 3 of the Convention , the Deputy Minister found that her account provided insufficient indications to find that , if returned to Turkey , she would run a real and personal risk of being subjected to treatment in breach of that provision.

In her written comments ( zienswijze ) of 15 July 2008 the applicant maintained her account. She claimed that after her marriage her problems with the Turkish authorities had intensified and that the finding of the Deputy Minister that the harassment had been of a more or less constant intensity during all those years was therefore incorrect. After her marriage she had received visits from the police more often and with shorter intervals , her house had been searched and she had been apprehended for questioning more often. This had only slightly diminished after she had moved back to her parents. She further argued that even if her husband had not been living outside Turkey , she would have left as the situation had become unbearable. Finally , she claimed that the Turkish authorities were unable and unwilling to protect her as the harassment had been carried out by special anti-terrorist units of the police and not by the normal police.

On 2 December 2008 , the Deputy Minister refused the applicant ’ s asylum application , finding that she had failed to establish that she would be exposed in Turkey to a real risk of being subjected to treatment prohibited by Article 3 of the Convention. When considering the applicant ’ s account against the general political and social situation in Turkey , the Deputy Minister considered that it could not be said that the applicant had a real and personal risk of treatment contrary to Article 3. The Deputy Minister further considered that the fact that it was likely that upon return to Turkey she would attract the (negative) attention of the Turkish authorities was insufficient to establish a real and personal risk of a violation of Article 3. While it was possible that the applicant would be questioned about her and her husband ’ s activities , that she would be detained and that her house would be searched , this had also happened on several occasions when the applicant resided in Turkey , and as she had not been subjected to treatment in breach of Article 3 on those occasions it was unlikely that she would be upon return to Turkey. Also , the fact that the applicant ’ s husband had been involved in activities against the Turkish authorities and that therefore there existed a real and personal risk of him being subjected to treatment contrary to Article 3 in Turkey , was considered insufficient to establish a same risk in respect of the applicant. The Deputy Minister further held that the applicant ’ s arrival in the Netherlands was the result of her wish to be reunited with her husband.

On 10 December 2008 the applicant filed an appeal with the Regional Court ( rechtbank ) of The Hague sitting in Arnhem . This court dismissed the appeal on 15 October 2009 and upheld the impugned decision.

On 12 November 2009 the applicant lodged a further appeal 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 had failed to appreciate that if the existence of a risk of treatment in violation of Article 3 had been found established in respect of one member of a family , it must be assumed that this risk also exists with regard to the other members of the family. The applicant referred to several judgments of the Strasbourg Court , namely Bader and Kanbor v. Sweden (no. 13284/04 , ECHR 2005 ‑ XI) , D. and Others v. Turkey (no. 24245/03 , 22 June 2006) and Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03 , ECHR 2006 ‑ XI) .

On 18 June 2010 the Division accepted the applicant ’ s further appeal. It quashed the judgment of the Regional Court of 15 October 2009 , proceeded to an examination of the applicant ’ s initial appeal and rejected it. Although the Division agreed with the applicant that the Regional Court had failed to address her argument that the established Article 3 risk in respect of her husband should be taken into account with respect to her claims. This , however , could not lead to the acceptance of the appeal. Unlike the situation in the judgments relied on by the applicant – which concerned cases of persons facing considerable fear and anguish on account of the treatment which a relative would be subjected to if expelled – her husband would not be removed to Turkey.

No further appeal lay against this decision.

On an unspecified date , a daughter was born to the applicant and her husband.

COMPLAINTS

The applicant complains under Article 3 of the Convention that there are substantial grounds for believing that she will be subjected to treatment prohibited by that provision if she were expelled to Turkey .

S he further complains that the decision to reject her request for a residence permit was contrary to her rights under Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to treatment in Turkey which is prohibited by Article 3 of the Convention because of the activities of her husband? If so , have those treatments been carried out by actors for which Turkey is responsible under the Convention?

2. In the light of the applicant ’ s claims , especially her claims that she has been subjected to treatment prohibited by Article 3 of the Convention in relation with the fact that she is married to a man who is wanted by the Turkish authorities because of his activities for Dev Sol , and the documents which have been submitted , would the applicant face a real risk of being subjected to treatment in breach of Article 3 of the Convention if she were expelled to Turkey?

3. Furthermore , is it correct that the applicant ’ s husband will not be expelled to Turkey because he has a real and personal risk of a violation of Article 3 of the Convention? If so , is this of importance for determining the risk of the applicant being subjected to treatment contrary to Article 3 of the Convention? If not , why not?