THIRD SECTION
DECISION
Application no. 47600/12
A.S.O.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 17 September 2013 as a Committee composed of:
Alvina Gyulumyan, President,
Kristina Pardalos,
Johannes Silvis, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 23 July 2012,
Having regard to the decision to grant anonymity to the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr A.S.O., is an Afghan national, who was born in 1984 and lives in Almelo. He was represented before the Court by Mr D. de Vries, a lawyer practising in Leeuwarden.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 December 2009 the applicant lodged his first, unsuccessful, asylum application. He claimed, inter alia, that in Afghanistan he had converted to Christianity. He claimed that his family had discovered his conversion and that for this reason he had been ill-treated by his family. By decision of 30 September 2010 the Minister of Justice (Minister van Justitie; “the Minister”) refused this application. The Minister considered that the applicant’s conversion and thus his asylum account lacked credibility. By judgment of 5 August 2011 the Regional Court (rechtbank) of The Hague, sitting in Groningen, dismissed his appeal and upheld the impugned decision. Although possible, no further appeal was lodged.
On 1 November 2011 the applicant lodged his second, unsuccessful, asylum application. He reiterated that he had converted to Christianity. He also stated that he had become a member of a Christian parish in the Netherlands. He further claimed that the general security situation in Afghanistan had deteriorated. Lastly, he claimed that his medical condition warranted the granting of an asylum permit. By decision of 9 November 2011 the Minister for Immigration and Asylum (Minister voor Immigratie en Asiel) rejected the applicant’s asylum application. The Minister considered that the applicant had failed to submit any newly emerged facts and/or circumstances that warranted a revision of the initial negative decision. The applicant’s appeal was dismissed by the Regional Court on 2 December 2011. The applicant’s further appeal was dismissed by the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State; “the Division”) on 23 February 2012. No further appeal lay against this ruling.
B. Developments after the introduction of the application
On 5 September 2012 the European Court of Justice of the European Union (“the Court of Justice”) rendered its judgment in Joined Cases C‑71/11 and C-99/11 Bundesrepublik Deutschland v. Y and Z. In this Judgment the Court of Justice held that for the purpose of determining which acts of interference of freedom of religion may be regarded as constituting persecution, it is unnecessary to distinguish acts that interfere with the ‘core areas’ (‘forum internum’) of the basic right to freedom of religion, which do not include religious activities in public, from acts which do not affect those purported ‘core areas’. According to the Court of Justice acts which may constitute a ‘severe violation’ within the meaning of Article 9 (1)(a) of the Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection guaranteed (“the Qualification Directive”) include serious acts which interfere with one’s freedom not only to practice his faith in private circles but also to live that faith publicly.
On 30 November 2012 the Division gave a ruling, applying the judgment of 5 September 2012 of the Court of Justice.
By letter of 13 December 2012 the Netherlands Government were asked to inform the Court what, if any, practical consequences they drew from the rulings of 5 September 2012 and 30 November 2012 in relation to the pending case.
By letter of 6 March 2013 the Government submitted the following:
“On 7 December 2009 and 1 November 2011 the applicant submitted applications for an asylum residence permit. The Government gives no credence to his conversion to Christianity in Afghanistan. In this connection it is important to note that, immediately after his arrival in the Netherlands, the applicant said that he was a practising Muslim. By letter of 23 January 2013 the applicant was invited to submit a new application. In considering the new application, the Government will examine whether the applicant’s conversion to Christianity in the Netherlands ought to be regarded as credible. If his conversion is found to be credible, a decision will be taken on the application with due observance of the judgment delivered by the Court of Justice of the European Union on 5 September 2012. The Government notes that notwithstanding the invitation the applicant has as yet not submitted a new application.”
By letter of 12 March 2013 the applicant was informed of the Government’s answer and was requested to inform the Court whether in the meantime he had lodged a new asylum request or whether he intended to do so shortly.
By letter of 9 April 2013 the applicant submitted that he had not yet lodged a new asylum application and that he did not intend to do so shortly. He failed to submit any reasons for this refusal.
By letter of 13 May 2013 the Government argued that the applicant should be considered as having lost interest in pursuing his application.
COMPLAINT
The applicant complained under Article 3 of the Convention that there were substantial grounds for believing that he would be subjected to treatment prohibited by this provision if he were expelled to Afghanistan.
THE LAW
The Court will first determine whether the applicant complied with the rule of exhaustion of domestic remedies set out in Article 35 of the Convention, which provides, in so far as relevant:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body until they have had the opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV; and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 et al., § 69, ECHR 2010-...).
An assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Demiroğlu and Others v. Turkey, no. 56125/10, 4 June 2013 with further references).
The Court notes that, although he has been invited to lodge a new asylum application which will be determined in the light of the ruling given on 5 September 2012 by the Court of Justice, the applicant indicated, without giving any reason, that he has no intention to lodge a new asylum application. The applicant has failed to submit any reasons for this refusal.
While the outcome of a new asylum application is not sure, the Court observes that in their answers to the Court’s question the Government have indicated five different categories of applicants. One of those categories consisted of asylum seekers whose conversion was not believed at all and thus to which the ruling of the Court of Justice was not applicable. The Court notes that the applicant’s asylum account was not classified in this category, but it was classified in the category of cases in which the Government wanted to interview the asylum seekers again in order to be able to assess whether the conversion is genuine. Therefore, it cannot be said that from the outset a new asylum application would not stand any chance of success.
The Court does not lose sight of the fact that the applicant was invited to lodge a new asylum application only after the introduction of the present application and that only exceptional circumstances may compel the applicant to avail himself of such a remedy (see above). However, the Court considers it appropriate and justified in the circumstances of the present case to require the applicant to lodge a new asylum application as the national authorities are better placed to assess the applicant’s asylum account in the light of the relevant case-law of the Court of Justice.
Therefore, the Court is of the opinion that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Alvina Gyulumyan
Deputy RegistrarPresident
Full & Egal Universal Law Academy