THIRD SECTION
DECISION
Application no. 50386/12
A. and M.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 1 October 2013 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 8 August 2012,
Having regard to the interim measure indicated to the Netherlands Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the decision to grant anonymity to the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr A. and Mr M., are Egyptian nationals who were born in 1988 and 1987 respectively and currently live in the Netherlands. They were represented before the Court by Ms M. Terpstra, a lawyer practising in Amsterdam.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Arrival at Amsterdam Airport; first round of proceedings
3. On 18 April 2012 the applicants arrived at Amsterdam (Schiphol) Airport on a direct flight from Cairo. They applied for asylum in the Netherlands after having been refused seats on board an aircraft bound for London.
4. On 23 April 2012, in two separate interviews, the applicants were interviewed about their identity, nationality and travel route. The applicants stated that they had left Egypt legally, using original passports lawfully issued to them in their own name, which had been checked by the authorities at the time of their departure. They had given their passports, along with their boarding passes and e-tickets, to their “travel agent” after their arrival at Amsterdam Airport.
5. On 24 April 2012, the applicants submitted their corrections and additions to their first interview.
6. On 25 April 2012, the applicants were interviewed separately about their reasons for seeking asylum. They claimed, inter alia, that they had been members of the National Democratic Party (“NDP”), the ruling party in Egypt during the regime of the former President Hosni Mubarak. Since the fall of President Mubarak, members of the NDP were no longer allowed to be involved in political activities. The applicants claimed that they had been discriminated against because of their NDP membership. For instance, they could not find any jobs for this reason. They further claimed that since the fall of President Mubarak it was no longer safe for them in Egypt.
7. On 26 April 2012, the applicants submitted their corrections and additions to the second interview.
8. By letters of 27 April 2012, the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; “the Minister”) notified the applicants of his intention (voornemen) to reject their asylum request. It was considered that the applicants’ asylum request was only based on the general situation in Egypt and not on any individual grounds. The general situation in Egypt did not raise any issues under Article 3 of the Convention or Article 15(c) of the EU Qualification Directive (2004/83/EG).
9. On 29 April 2012, in two separate decisions, the Minister refused the applicants’ asylum request, on the same grounds as given in the notification of his intention.
10. The applicants did not appeal although the possibility was open to them.
2. Second round of proceedings
11. On 6 June 2012, the applicants lodged a second asylum application, which pursuant to article 4:6 of the General Administrative Law Act (Algemene wet bestuursrecht) must be based on newly emerged facts and/or altered circumstances (“nova”) that warranted reconsideration of the initial refusal.
12. On 8 June 2012, the applicants were interviewed separately about the grounds of their repeated asylum request. They stated, inter alia, that they had held higher positions in the NDP than they had initially claimed. The first applicant had been a head of a division of the NDP and the second applicant had been a secretary of a local branch of the NDP. In those positions they had bribed people in order to win votes for the NDP and they had in addition accepted bribes for granting building permits. With these latter bribes, they had funded campaigns for the NDP in order to establish Hosni Mubarak’s son as his natural successor. They further claimed that on 17 May 2012 an Egyptian court of appeal had convicted them both in absentia of political corruption, finding it proven that they had committed bribery in winning votes for the NDP. They had both been sentenced to ten years’ imprisonment. In addition, a fine of 350,000 Egyptian pounds had been imposed on the first applicant and a fine of 300,000 Egyptian pounds on the second applicant. Arguing that the sentence imposed on each of them was disproportionately high, that the political situation in Egypt was still unstable and that the detention conditions in Egypt were very bad, the applicants claimed that, if expelled to Egypt, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention.
13. In support of their claims the applicants submitted a copy of a judgment given on 17 May 2012 by an Egyptian tribunal, which reads as follows (re-translated from a translation into Dutch):
“High Court of Alexandria – District Court Damanhour
Judgment in a criminal case
Name of the first accused: A., born at 1 July 1988, in the [...] governorate;
Indictment: Article 84 of the Penal Code: participation in a political organisation in violation of the Constitution with an aim to corrupt the political life.
Punishment: 15 years’ imprisonment under a strict regime and a maximum fine of 1 million Egyptian pounds.
Name of the second accused: M., born at 19 September 1987, in the [...] governorate;
Indictment: Article 84 of the Penal Code: participation in a political organisation in violation of the Constitution with an aim to corrupt the political life.
Punishment: 15 years’ imprisonment under a strict regime and a maximum fine of 1 million Egyptian pounds.
After inspection of the evidence and after hearing the argumentation before the court in the absence of the accused, who remain at large, the court has sentenced in absentia both accused to 10 years’ imprisonment under a strict regime. Furthermore, the first accused has to pay a fine of 350,000 Egyptian pounds (three hundred and fifty thousand) and the second accused has to pay a fine of 300,000 Egyptian pounds (three hundred thousand). The case has been closed at 10 a.m. on 17 May 2012.”
14. The applicants submitted what they claimed were newspaper articles taken from two Egyptian newspapers, Al-Ahram and Al-Akhbar, dated 14 May 2012, which mentioned their trial and the fact that they were on the run. The article purportedly published in Al-Akhbar specified that the applicants had each been sentenced to ten years’ imprisonment.
15. On 9 June 2012, the applicants submitted their corrections and additions to their interview of 8 June 2012.
16. By letters of 11 June 2012, the Minister notified the applicants of his intention to reject the applicants’ second asylum application. It was considered that the applicants had failed to submit any relevant new facts. The applicants could and should have mentioned in their first asylum proceedings that they had held more important positions in the NDP than they had initially stated. Furthermore, as they had on their own admission been aware when they had left Egypt that a criminal investigation against them was being conducted, they could and should have mentioned this fact in the proceedings concerning their first asylum request. In so far the applicants submitted that they had been convicted of political activities for the NDP, they had only submitted a copy of the judgment and they had been unable to shed any light on the manner in which they had obtained it.
17. In their written comments (zienswijze) of 11 June 2012, the applicants maintained that they had submitted relevant new facts. The judgment of the Damanhour District Court had been given after the decision on their first asylum request, so that they could not have submitted this judgment during the proceedings on their first asylum request. Furthermore, the applicants had not expected that they would be convicted and that the sentence imposed on them would be so harsh. For these reasons, they had not found it necessary to mention these criminal proceedings in the first set of proceedings.
18. On 12 June 2012, in two separate decisions, the Minister refused the applicants’ second asylum requests, finding that they were not based on relevant new facts.
19. On 12 June 2012, the applicants lodged an appeal with the Regional Court (rechtbank) of The Hague. At the same time they requested that court to order a provisional measure (voorlopige voorziening) to the effect that their expulsion would be stayed pending the outcome of the appeal proceedings. As relevant to the case before the Court, they claimed that they had not disclosed their true situation when filing their first asylum request for fear that the Netherlands authorities would contact the Egyptian consulate. They further stated that at that time the outcome of the criminal proceedings was still unknown, and it was unclear whether the NDP candidate or the Muslim Brotherhood candidate would win the Egyptian Presidential elections. They relied on, among other things, the 2011 country report on Egypt, published by the US State Department on 24 May 2012, and Amnesty International’s annual report for 2011, published on 22 May 2012.
20. On 6 July 2012, the Regional Court of The Hague sitting in Amsterdam held a hearing. During this hearing the applicants submitted a legalised copy of the judgment and showed the original to the court.
21. On 13 July 2012, the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Amsterdam dismissed the applicants’ appeal and rejected the request for a provisional measure. As relevant to the case, the provisional measures judge held that the fact that the applicants had failed to give full disclosure of their reasons for seeking asylum in the proceedings on their first request was imputable to them and was not excusable. The authentic Egyptian judgment of 17 May 2012 and the three newspaper clippings of 14 May 2012 were all of a later date than the decision turning down the first asylum request and could thus be regarded as new facts, so that these documents could in principle be taken into account. However, since these documents directly concerned the part of the asylum accounts deliberately concealed by the applicants in the proceedings on their first asylum request they could not be relevant. The same applied to the applicants’ reliance on reports concerning conditions of detention in Egypt and the alleged risk of torture. The information contained in the reports concerned the situation in 2011 and it could not be deduced from these reports that this situation had worsened since the determination of their first asylum request. Also, the general security situation in Egypt could not be regarded as having worsened since 29 April 2012 to such an extent that the applicants could successfully invoke Article 15(c) of the EU Qualification Directive. Lastly, the applicants had failed to establish that NDP members, either in general or the applicants in particular, would be exposed after their conviction to a risk of treatment contrary to Article 3 of the Convention.
22. On 19 July 2012, the applicants appealed against 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 their second asylum request was based on genuine new facts.
23. On 3 August 2012 the Division dismissed the applicants’ appeal on summary reasoning. No further appeal lay against this ruling.
B. Relevant Egyptian law
24. According to a translation published via the United Nations Office on Drugs and Crime, Article 84 of the 1937 Penal Code of Egypt provides as follows:
“Detention for a period not exceeding one year and a fine not exceeding five hundred pounds or either penalty shall be the punishment inflicted on whoever becomes aware of one of the crimes prescribed in this part having been committed and fails promptly to notify it to the competent authorities.
The penalty shall be doubled if the crime is committed in time of war.
The court may exempt the offender’s spouse, ascendants, and descendants from this penalty.”
C. Developments in Egypt
25. It was reported by Ahram Online on 14 November 2011 that the Egyptian Supreme Administrative Court had overturned a ban on former NPD members taking part in parliamentary elections scheduled later that month.
26. Elections for the lower house of Parliament were held in three stages between late November 2011 and late January 2012. Among the parties elected were five described in the Egyptian press as “remnants of the NDP”; they held minority positions.
27. In July 2013, the Muslim Brotherhood-led government was removed from power by the Egyptian armed forces and an interim government was appointed pending elections intended to be held the following year.
COMPLAINT
28. The applicants complained under Article 3 of the Convention that their expulsion to Egypt would violate their rights under this provision.
THE LAW
Alleged violation of Article 3 of the Convention
29. The applicants contended that their expulsion to Egypt would expose them to a real risk of ill-treatment in breach of Article 3, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
30. The applicants alleged that they had been convicted and sentenced in Egypt for politically-motivated reasons. In their submission this amounted to “persecution” within the meaning of the United Nations 1951 Convention on the Status of Refugees (“Refugee Convention”) as the sentences imposed were disproportionately high.
31. They further contended that the general security and political situation in Egypt remained unstable. It was unclear how the Muslim Brotherhood would treat NDP members.
32. Finally, they argued that the conditions of detention in Egypt were so abominable that they ran a real risk of treatment contrary to Article 3. They referred to Amnesty International’s 2011 annual report, in which allegations of torture and ill-treatment by the police continued to be made. They further referred to the 2011 country report on Egypt by the US State Department, which in its relevant parts read the same as the 2012 country report, which stated that detention conditions in Egypt were harsh, with overcrowded cells and inadequate medical care, sanitation, food and water.
33. Reiterating the Court’s case-law concerning expulsion, the Court must examine whether substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention, regardless of whether this risk emanates from a general situation of violence, a personal characteristic of the person concerned, or a combination of the two (see, among many other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 125‑127, ECHR 2008).
34. The judgment submitted by the applicants in support of their second asylum application cannot alone satisfy the Court as to the well‑foundedness of the applicants’ claims. In particular, the Court cannot find it established that “participation in a political organisation in violation of the constitution with an aim to corrupt the political life” is an accurate reflection of the crime defined in Article 84 of the 1937 Penal Code of Egypt (see § 24 above).
35. Even if it be assumed that the judgment submitted by the applicants is authentic, the Court cannot find it established that the applicants’ prosecution and conviction forms part of a politically motivated campaign against members of the NDP. The purported judgment states only that the applicants have been convicted of “participation in an unconstitutional political activity aimed at corrupting political life”.
36. Moreover, the Court notes the ease with which the applicants were apparently able to leave Egypt, travelling by air on their own passports. This does not suggest that they were already wanted at the time for a crime attracting a long prison sentence and a considerable fine.
37. Finally, the applicants have failed to establish that, after the overthrow of President Mubarak, rank-and-file NDP members like themselves were at any time specifically targeted by the new regime and the Egyptian justice system; nor does the information available suggest that such was the case (see paragraphs 25 and 26 above).
38. At all events, as matters now stand the Court is not convinced that the Muslim Brotherhood, whom the applicants claim to fear, are in a position to do them harm and the present leadership of the country would be unwilling or unable to protect them (see paragraph 27 above).
39. In view of the above, the Court does not find it established that the applicants would run a real and personal risk of being subjected to treatment in violation of Article 3 in the event of their removal to Egypt.
40. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
41. 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.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy