THIRD SECTION

Application no . 28199/12 D.T. against the Netherlands and Georgia lodged on 26 April 2012

STATEMENT OF FACTS

THE FACTS

The applicant , Mr D.T. , is a citizen of Georgia . He was born in 19 73 and is currently staying in the Netherlands . He is represented before the Court by M s M. de Boer , a lawyer practising in Lelystad .

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

The applicant applied for asylum in the Netherlands on 29 May 2007. He claimed , inter alia , the following. He used to work as a border guard at the border between Georgia and Azerbaijan. His main responsibilit y had been the combating of drugs trafficking. Between the two countries a neutral zone exist ed . On 10 April 2007 the applicant had been ordered by his superior officer to bring a person ( one Mr X ) from the neutral zone to Georgia , evading the normal border controls. On 16 April 2007 he had again been ordered to smuggle Mr X across the border on 17 April 2007. Also on 16 April 2007 the applicant had received a tip that a drugs trafficker had been sighted in the neutral zone. The applicant had gone to the neutral zone and s een that this drugs trafficker was the same person as Mr X . The applicant had info rmed his superior , Mr L . , who told him that the information he had received was wrong. On 20 April 2007 the applicant had once more been ordered by Mr L . to smuggle Mr X across the border. The applicant had refused. One hour later the applicant had received a telephone call from his mother who told him that she was being held hostage and that the applicant should smuggle this person across the border. The applicant had been forced to comply. On 21 April 2007 the applicant had info rmed his superior , Mr L . , that he would take steps to prevent this smuggling in the future. The applicant had written a memo to Mr B . , the head of the border guard s (and superior of Mr L . ). The next day , 22 April 2007 , the applicant had been summoned to his superior who showed him the memo and told him that he should take care and should follow orders . T he applicant had gone back to work. Until 7 May 2007 nothing had happened. On that date the applicant had again been ordered to smuggle Mr X across the border , but he was told that this would be the last time. One week later the applicant would be promoted to the next rank , which had been planned for s ome time. The applicant had brought Mr X across the border and gone back to work. That evening , at 7 p . m . , the applicant had gone to pick up Mr X and bring him back to the neutral zone . When he had arrived at the designated place , Mr X was accompanied by two persons , one of them wearing a jacket bearing the letters SOD – which stands for Specia l Operations Department – the other one in plain clothes. Mr X and the plain -c lothe s man needing to discuss something , t he applicant and the SOD man had given them some privacy and walked away. The SOD man had show n an interest in the applicant ’ s weapon . Mr X and the plain - clothe s man had started shouting at each other. As a reaction the SOD man had shot Mr X with the applicant ’ s weapon. The applicant had fled. While running he had been being shot at. With the help of a colleague , the applicant had managed to flee the country.

On 20 April 2009 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) refused the applicant ’ s asylum application. His account was found to lack credence. According to an individual official report ( individueel ambtsbericht ) of the Netherlands Ministry of Foreign Affairs of 8 December 2008 the applicant had been fired as a result of a reorganisation. Furthermore , the SOD was not looking for the applicant , nor was the applicant wanted for a criminal offence. Therefore , the applicant ’ s claim that he had been a witness of a liquidation of a drugs trafficker and that he was being blamed for this , was found to lack credence , and it was concluded that t he applicant had failed to establish that he had a real and personal risk of persecution by either the Georgian authorities or the Azerbaijani drugs mafia.

The applicant appealed this decision. On 27 August 2009 the Deputy Minister informed the applicant that the decision of 20 April 2009 had been withdrawn and that a new decision would be taken. Subsequently , the applicant withdrew his appeal. On 12 November 2009 the Deputy Minister again refused the application. Although t he applicant ’ s account concerning the trafficking and the murder of Mr X with the applicant ’ s weapon were believed , the applicant ’ s fear of persecution by either the SOD or the Azerbaijani mafia was found to lack credibility. According to the individual official report the SOD and/or other Georgian authorities were not looking for the applicant.

The applicant appealed this decision. On 23 December 2010 the Regional Court ( rechtbank ) of The Hague sitting in Utrecht , accepted the appeal , quashed the decision of 12 November 2009 and ordered the Minister for Immigration , Integration and Asylum Policy ( Minister voor Immigratie , Integratie en Asiel ; the successor to the (Deputy) Minister of Justice) to take a fresh decision. As the applicant , through the submission of a number of documents , had succeeded in showing that some of the conclusions reached in the individual official report of 8 December 2008 were incorrect , the Regional Court found that the Minister could not have relied on th at report . It further held that country of origin information showed that the applicant could not rely on protection being provided by the Georgian authorities against corrupt individuals.

The Minister lodged a further appeal against this decision. On 24 February 2012 the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) accepted the further appeal , quashed the judgment of 23 December 2010 and dismissed the applicant ’ s initial appeal. It held that the Minister could have based his decision on the individual official report , since t he core of th is report concerned the applicant ’ s allegation that he was wanted by the SOD. According to the report the SOD were not looking for the applicant. Therefore , the applicant had failed to establish a real and personal risk of a violation of Article 3.

COMPLAINT

The applicant complained under Article 3 of the Convention that , if expelled to Georgia , he will be exposed to a real risk of treatment prohibited by this provision. He further complain ed that , on this point , he did not have an effective remedy as guaranteed by Article 13 of the Convention.

QUESTION

In the light of the applicant ’ s claims and the documents which have been submitted , would he face a real risk of being subjected to treatment in breach of Article 3 of the Convention if the expulsion order were enforced?