C.M.M. v. THE NETHERLANDS

THIRD SECTION

DECISION

Application no. 46970/07
C.M.M.
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 14 June 2016 as a Chamber composed of:

Luis López Guerra, President,
Helena Jäderblom,
Johannes Silvis,
Branko Lubarda,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,

Having regard to the above application lodged on 22 October 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr C.M.M., is a national of the Democratic Republic of the Congo (“DRC”) who was born in 1962. He is currently living in the Netherlands. He was initially represented before the Court by Ms M. de Boer, a lawyer practising in Utrecht. She was succeeded by Mr W. Boelens, who is also a lawyer practising in Utrecht.

2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

4. On 3 August 2001 the applicant entered the Netherlands and applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). On 14 August 2001, the immigration authorities held a first interview (eerste gehoor) with the applicant concerning his identity, nationality and travel itinerary. A written record of this interview was prepared and the applicant, assisted by a lawyer, was given the opportunity to submit corrections and additions, which he did on 15 August 2001. On 16 August 2001 a second interview (nader gehoor) was held with the applicant about his reasons for seeking asylum. A written report was drawn up and the applicant, assisted by a lawyer, submitted corrections and additions on 17 August 2001.

5. On 16 August 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie) issued a notice of her intention (voornemen) to reject the applicant’s asylum application. On 17 August 2001, assisted by a lawyer, the applicant submitted written comments (zienswijze) on the notice of intent.

6. On 20 September 2001, on the basis of his written comments of 17 August 2001, the immigration authorities held a supplementary interview (aanvullend gehoor) with the applicant. A written report of this interview was drawn up and the applicant, assisted by a lawyer, submitted corrections and additions on 22 October 2001.

7. During these three interviews, the applicant gave the following statement. He was a national of the DRC. His parents had died. He was married but his wife had remained in the DRC together with their six children, who were born between 1988 and 1999. He also had two brothers and one sister, all of whom were living in the DRC. He gave the address of his home (N. street no. ... in the N’djili borough of Kinshasa) and described the surroundings of the house where he had lived for the previous two years. He stated that it was near to a nameless football field located at M. or K. street, and that there was a protestant school on the opposite side of the street. Behind this school there was a street without a name and he had lived in a side street of this nameless street. For identification purposes, he provided the Netherlands authorities with a formal declaration of loss of identity documents (attestation de perte des pièces d’identité) bearing the number 6436/POP/2000, which had been issued on 31 August 2000 by the mayor of one of the Kinshasa boroughs and contained the applicant’s particulars − including his personal address − but no specification of the nature of the identity documents lost. For the same purpose, he submitted a work pass issued by the “Service de l’Aéronautique Civile du Zaire” on 19 February 1998 and valid until 15 February 2001 and attesting that the applicant was working as a loadmaster in the employment of Nigeria Airways. Although the street name of the applicant’s personal address in this work pass was the same as that on the declaration of loss of documents, the house number was not the same.

8. The applicant also stated that, since 2000, he had been a sympathiser of the Movement for the Liberation of the Congo (Mouvement de Libération du Congo; hereafter “MLC”). He often read MLC information material but never participated in public events such as demonstrations or party meetings. Between 1988 and 1996 he had worked as a ticket agent for Air Zaire. From 1996 until leaving the Congo, he had worked as a ground handling manager/loadmaster for Nigeria Airways, which entailed checking in and boarding passengers, carrying out ground-crew tasks and drawing up flight manifests.

9. In October or November 1998 the applicant and his Nigerian superior had been arrested by three officers of the DRC national police on a charge of allowing passengers with false papers onto a departing aircraft. After being held for three days in the civilian prison in the Gombe borough of Kinshasa, near to the Mamayeno Hospital, and following intervention by his employer, he had been released unconditionally. He had been beaten whilst in detention.

10. On 18 February 2001 the applicant had been arrested for a second time by two men who showed him passes identifying them as officers of the DRC military intelligence service (Détection militaire des activités anti-patrie; hereafter “DEMIAP”). He was accused of helping two passengers ‒ who were believed to have been involved in an attack on President Laurent Kabila ‒ to flee the country rather than reporting them to the immigration service. The applicant had denied the accusation; it had not been his task to guide passengers to or through immigration checks. He had been detained in a military subterranean prison which, he believed, was located in the Gombe borough of Kinshasa. On the third day of his detention, the applicant’s home had been searched, during which two MLC pamphlets had been found. His passport had also been found and seized during this search. As a result of the severe maltreatment he had suffered during his detention, in mid-March 2001 the applicant had been admitted to the Gombe military hospital for treatment. His wife had been allowed to visit him in hospital once at the end of March 2001. On that occasion she had given him a Bible in which some money and his identity papers had been concealed. With the help of a friend of his brother-in-law’s, the applicant had managed to escape at the end of June 2001. Three soldiers had taken him from the hospital to a house in a place near Kinshasa. On 2 August 2001 he had been taken to Kinshasa airport and on the same day had managed to flee the DRC by plane.

11. On 15 November 2001 the Deputy Minister of Justice issued a fresh notice of her intention to reject the applicant’s asylum application. On 11 December 2001, assisted by a lawyer, the applicant submitted written comments on the new notice of intent.

12. In a decision of 17 January 2002, the Deputy Minister rejected the applicant’s asylum application. On 11 February 2002, the applicant filed an appeal against this decision with the Regional Court of The Hague.

13. On 3 October 2003 the applicant submitted, as additional grounds of appeal, a copy of a summons which he had received only on that date, although it had been issued on 2 November 2001 by the DRC judicial police (police judiciaire des parquets) of the Prosecution Service of the DRC State Security Court (Parquet général près la Cour de sûreté de l’Etat). It ordered the applicant to present himself on 3 November 2001 before a named inspector of the judicial police in order to be questioned about “facts of which he would be informed”.

14. The applicant also submitted on 3 October 2003 a report commissioned by “Docu Congo”, a non-governmental organisation (NGO) in the Netherlands, which had been compiled by another NGO, namely the International Society for Human Rights (hereafter the “ISHR”). The author of the ISHR report was the president of the Congo Section of the ISHR, Reverend Placide Tshisumpa Tshiakatumba. For the purposes of this report the researcher(s) had visited the applicant’s address in Kinshasa − as given in the record of his first interview and on the declaration of loss of identity documents (see paragraphs 4 and 7 above) − and N’djili (Kinshasa) International Airport. They had interviewed a former secretary at Nigeria Airways, amongst others, and had sought information from two people working for the Prosecution Service of the State Security Court. The report confirmed, in its relevant part, that the applicant had worked for Nigeria Airways at Kinshasa airport, that he had been arrested by the DEMIAP on the grounds stated, and that he had lived at the address he had provided. The report also stated that Nigeria Airways had had to cease its activities at Kinshasa airport for various reasons including the failure to respect airport rules and procedures, fraudulently embarking passengers, and “above all for that manifesto matter” (“surtout pour cette affaire de manifeste”). It also states that the applicant’s wife had left for an unknown destination. Through their sources at the State Security Court, the researcher(s) confirmed that the applicant was wanted for endangering state security (“Monsieur [C.M.M.] est recherché par les services de sécurité pour des motifs grâves d’attente [sic] à la sécurité de l’état”), that the person who signed the summons was indeed an inspector for the State Security Court and that the applicant would be immediately arrested and detained if found.

15. On 14 October 2003, the applicant was informed that the impugned decision of 17 January 2002 had been withdrawn and a fresh decision would be taken.

16. On 14 January 2004 the applicant was informed that the Netherlands Ministry of Foreign Affairs was initiating an investigation in the DRC in response to the material the applicant had submitted in support of his asylum request.

17. On 22 December 2004 the Ministry of Foreign Affairs released a person-specific official report (individueel ambtsbericht) based on an investigation carried out in the DRC. It had been found, inter alia, that – contrary to the ISHR report – the street name given by the applicant as his home address during his first interview as also on his declaration of loss of identity documents did not exist in the Kinshasa borough where he had allegedly been living during his last two years in the DRC and that, for this reason, it had not been possible to verify whether the applicant’s spouse and/or other relatives were still living there. It had also become apparent that the declaration of loss of identity documents no. 6436/POP/2000 and the summons submitted by the applicant (see paragraphs 7 and 13 above) were forgeries, and it had not been possible to verify the authenticity of the work pass submitted by the applicant (see paragraph 7 above). Moreover, in so far as known, there was no subterranean prison attached to the DEMIAP office in the Gombe borough in Kinshasa and no military hospital existed in Gombe.

18. On 25 February 2005 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; hereafter “the Minister”) issued a fresh notice of intent rejecting the applicant’s asylum request. Observing that the applicant had not submitted any evidential material (such as a boarding pass, a luggage label, an in-flight magazine or other in-flight item bearing the name of the airline) attesting to his journey, that he had not submitted any documents in support of his asylum application and that he had provided only very cursory information about his periods of detention and hospitalisation, and having noted the content of the person‑specific official report of 22 December 2004, the Minister concluded that there were sufficiently persuasive arguments for attaching no credence to the applicant’s asylum statement.

19. On 2 March 2005, under the provisions of the Government Information (Public Access) Act (Wet Openbaarheid van Bestuur), the applicant requested that the documents underlying the person-specific official report of 22 December 2004 be disclosed. This request was transmitted to the Minister of Foreign Affairs on 14 March 2005.

20. On 25 March 2005, assisted by a lawyer, the applicant submitted written comments on the fresh notice of intent of 25 February 2005. He contested the findings set out in the person-specific official report, whilst pointing out that the non-disclosure of the documents underlying that report and of the working methods employed by the person(s) involved in the inquiry meant that he could do so to only a limited extent. The applicant also requested a reasonable extension to the four-week period allowed for the submission of additional written comments, as he had requested Docu Congo to commission a new expert report to counter the Ministry of Foreign Affairs’ person-specific official report. He therefore asked the Minister to stay her decision pending submission of this counter-report.

21. On 31 March 2005 the Minister of Foreign Affairs provided the applicant with the documents on which the person-specific official report had been based, at the same time restricting his access to certain parts of the documents containing information about the identity of agents or informants who had assisted in the investigation, information about investigation methods and techniques used, and information about their level of knowledge (so as to avoid facilitating an improvement in the quality of forgeries).

22. In her decision of 16 December 2005 the Minister rejected the applicant’s asylum application. She noted that on 25 March 2005 the applicant had requested an extension in order to allow Docu Congo to produce a report to counter the person-specific official report and that this request had been granted on 1 April 2005. She also noted that, by letters dated 20 June, 18 July, 16 August, 28 October and 25 November 2005, the applicant had been asked to indicate when submission of the counter-report could be expected and that neither the applicant nor his lawyer had been able to answer this question. Finding that the applicant had had ample time to submit his comments on the person-specific official report, the Minister decided to proceed with her decision. The Minister took into account the fact that the Ministry of Foreign Affairs’ inquiry had been based on the applicant’s submissions, including the ISHR report (see paragraph 14 above), and that – following the so-called “REK check” (see D.T. v. the Netherlands and Georgia (dec.), no. 28199/12, §§ 25-26, 15 September 2015) – it had been found that the person-specific official report had been drawn up with due care, both substantively and procedurally, and was comprehensible. The Minister also found that the applicant had submitted no evidence capable of casting doubt on the finding that the declaration of loss of identity documents no. 6436/POP/2000 and the summons submitted by the applicant (see paragraphs 7 and 13 above) were forgeries and once again concluded that no credence could be attached to the applicant’s asylum statement.

23. On 11 January 2006, the applicant filed an appeal against this decision with the Regional Court of The Hague and, on 10 March 2006, submitted a report commissioned by Docu Congo which had been published on 27 January 2006 by the NGO Comité pour la Democratie et les Droits de l’Homme (hereafter the “CDDH”). The author of the CDDH report was its Secretary-General, Mr René Kabala Mushiya. For the purposes of compiling the report, he had managed to contact the applicant’s spouse as well as some people working at N’djili Airport who had known the applicant when he was an employee of Nigeria Airways.

24. The applicant’s spouse had explained that the street address given by the applicant was in fact a path across a cemetery. According to information provided by the N’djili Borough Population Service (Service de la Population de la Commune de N’djili), illegal dwellings had been built around the cemetery and that was where the applicant and his spouse had lived. When visiting the cemetery in November 2005, the applicant’s spouse had been unable to orientate herself as a result of major rebuilding work carried out in the neighbourhood after 2003, when the local authorities had decided to transform the cemetery into a residential area. This transformation was confirmed in an appended written statement by the local neighbourhood leader (chef de quartier). The applicant’s spouse had also stated that, together with some Nigeria Airways employees, she had visited the applicant in the Gombe medical centre at about 8 p.m. one evening in mid-March 2001. For his part, the applicant submitted written statements by three individuals working in the airline industry, who all declared that they had personally known the applicant, confirmed that he had worked for Nigeria Airways and described the nature of his work for the airline. The report drawn up by the CDDH does not contain any information about the declaration of loss of identity documents or the summons of 2 November 2001 (see paragraphs 7 and 13 above).

25. The Regional Court of The Hague sitting in ‘s-Hertogenbosch found on 11 April 2006 that the restrictions applied to the applicant’s access to the underlying documents (see paragraph 21 above) were justified under section 8:29 of the General Administrative Law Act (Algemene Wet Bestuursrecht). This decision was communicated to the applicant on the same day, with a request to indicate whether or not he had given his consent for the Regional Court to take into account these underlying documents in determining his appeal on 11 January 2006 without their being disclosed to the parties.

26. In its judgment of 7 December 2006, the Regional Court of The Hague sitting in ‘s-Hertogenbosch rejected the applicant’s appeal of 11 January 2006. It noted that the parties had given their consent under the terms of section 8:29 § 5 of the General Administrative Law Act to take into account the documents underlying the person-specific official report of 22 December 2004. It held, inter alia, that the Minister could reasonably find that the applicant had failed to demonstrate that the absence of documents supporting his asylum statement was not a shortcoming for which he was to blame, and that the Minister could reasonably held against the applicant the fact that he had not provided a detailed and verifiable statement about his purported travel itinerary and that this detracted from the reliability and credibility of the applicant’s asylum statement. As regards the two reports commissioned by Docu Congo, and relied upon by the applicant, and the person-specific official report of 22 December 2004, the Regional Court held:

“18. It appears from the investigation carried out by the CDDH that the neighbourhood where the appellant claims to have lived changed in 2003 into a residential area after improvised (illegal) buildings were erected around an old cemetery. The appellant has argued that, since it has been demonstrated that the investigation of the address [by the Minister of Foreign Affairs] was incomplete, the reason for believing that the ‘attestation de perte des pièces d’identité’ he submitted is forged has become groundless.

19. The court does not agree with this conclusion by the appellant. The findings of the CDDH do not alter the conclusion that the ‘attestation de perte des pièces d’identité’ is a forgery. The court reaches this conclusion after having studying the documents underlying the person-specific official report, in particular the additional statement of 28 October 2004 [containing a detailed explanation as to why it was clear that this document was a forgery]. It appears therefrom that the document concerned – irrespective of the correctness of the street name indicated – contains deletions as a result of which it can no longer be regarded as authentic. It follows that the appellant, by relying on the findings in the CDDH report, has not adduced concrete evidence calling into doubt the correctness of the conclusions in the person-specific official report.

20. Unlike the appellant, the court does not find that the investigation lacked due care. ...

21. In so far as the appellant has expressed doubts as regards the objectivity and reliability of the confidential contact person [who carried out the investigation in the DRC], the court points out that the appellant has not submitted any concrete evidence to suggest that this confidential contact person might have been untrustworthy and acted carelessly. The claim that the confidential contact person acted out of resentment has likewise not been substantiated by the appellant. Moreover, contrary to the appellant’s submissions, it is not apparent from the underlying documents that the ISHR report was found to be inaccurate. ...

22. In assessing whether the Minister acted in a reasonable manner, the court finds that, in referring to the person-specific official report, [the Minister] adduced sufficient arguments to support the finding that the appellant’s asylum statement is not credible.

23. In the appeal proceedings the appellant also submitted that, if returned to the DRC, he would be exposed to a real risk of being subjected to treatment within the meaning of Article 3 of the Convention. ...

26. Since the court has held, in the light of the above, that [the Minister] had good reasons for finding that the asylum statement was not credible, it cannot be concluded therefrom that the applicant would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by Article 3 if he were removed to the DRC. ...”

27. The applicant’s further appeal was rejected on the basis of a summary reasoning issued on 30 May 2007 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It found that the further appeal did not provide grounds for quashing the impugned rulings. Pursuant to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against that ruling.

28. To date, the applicant has not been removed from the Netherlands nor has he filed a fresh asylum application in the Netherlands.

B. Relevant domestic law, practice and materials

1. Asylum and removal

29. The relevant domestic law and practice as regards asylum proceedings and the enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).

2. Person-specific official reports

30. Details concerning the preparation of person-specific official reports (individuele ambtsberichten) and their use in asylum-related proceedings have been set out in D.T. v. the Netherlands and Georgia (cited above, §§ 24-27).

31. On 27 September 2007 the Netherlands National Ombudsman (Nationale Ombudsman) – an independent institute charged with protecting individuals against improper government conduct by conducting investigations of its own motion or on the basis of an individual’s complaint, and making non-binding recommendations to government agencies – released report no. 2007/200 on the manner in which person‑specific official reports are compiled and used in asylum proceedings. The report was entitled “The credibility of official reports. How asylum statements are confirmed or confuted.” (“De geloofwaardigheid van ambtsberichten. Hoe asielverhalen worden bevestigd of ontkracht.”). In this report, the Ombudsman formulated a number of recommendations addressed to the Minister of Foreign Affairs and the Minister of Justice seeking to reinforce the position of asylum seekers in asylum proceedings and thus the compliance of such proceedings with the common standards of propriety.

32. In a letter of 19 September 2008 to the President of the Lower House of Parliament (Tweede Kamer) about the follow-up generated as a result of this report, the Ombudsman stated that, although it had led to a number of laudable improvements, the Ministers had not accepted two important recommendations concerning the degree of disclosure of documents underlying person-specific official reports to the decision‑making civil servant and the asylum seeker concerned.

33. In March 2009, the Ombudsman filed comments on the consolidated seventeenth to eighteenth periodic reports on compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, which had been submitted by the Netherlands Government to the United Nations Committee on the Elimination of Racial Discrimination. The Ombudsman’s comments contain the following observations in respect of general country assessment and person-specific official reports as used by the Netherlands immigration authorities in their decision-making process:

“Feedback from interest groups indicated a great deal of dissatisfaction with the quality of these official country reports. They allegedly contained information that was insufficiently relevant, insufficiently current, and incomplete, or sometimes even incorrect. One of the key problems was the fact that official country reports do not provide an overview of the available facts but rather a conclusion concerning certain facts. The underlying facts are often not available to the asylum seekers and their representatives, which makes it essentially impossible to enter into a discussion concerning the substance of the conclusions drawn. The IND [Immigration and Naturalisation Department] employee who makes the decision is thus not able, in preparing the decision, to consult this file to assess whether the contents of the individual official country report are supported by the underlying documents. Only a more highly-qualified IND employee is allowed to do so. This more highly-qualified IND employee will subsequently pass on his findings to the employee who makes the decision. Neither the asylum seeker nor his representative is able to inspect this file [Footnote 41: Subject to application of Article 8:29 General Administrative Law Act]. The Ombudsman found that this working method fails to recognise the responsibility of the state to present sufficient valid facts during the asylum procedure and to facilitate a fair hearing on the basis thereof [Footnote 42: National Ombudsman, The credibility of person-specific official reports, report 2007/200]. The Ombudsman made several recommendations to improve the position of foreign national/asylum seekers during the asylum procedure, but not all of these were implemented.”

34. The Committee on the Elimination of Racial Discrimination considered the consolidated seventeenth to eighteenth reports of the Netherlands at its 1986th and 1987th meetings, held on 23 and 24 February 2010. At its 2003rd meeting, held on 5 March 2010, it adopted its concluding observations on these reports, which did not address the quality of general country assessment reports and/or person-specific official reports.

35. Section 8:29 of the General Administrative Law Act reads as follows:

“1. Parties who are obliged to provide information or submit documents may, if there are substantial reasons (gewichtige redenen) to do so, refuse to provide such information or submit such documents, or may inform the administrative tribunal that it alone shall be allowed to inspect the information or the documents.

2. In the case of an administrative body, there can exist no such substantial reasons since there is an obligation, pursuant to the Government Information (Public Access) Act, to accede to any request for information contained in the documents to be submitted.

3. The administrative tribunal shall decide whether the refusal or restriction of inspection referred to in the first paragraph is justified.

4. If the administrative tribunal has decided that the refusal is justified, the obligation shall no longer exist.

5. If the administrative tribunal has decided that the restriction of inspection is justified, it may give judgment based on that information or those documents only with the permission of the other parties. If such permission is refused, the case shall be remitted to another chamber.”

3. Official country assessment report on the DRC

36. According to the most recent official country assessment report on the DRC, published in December 2014 by the Ministry of Foreign Affairs, the general situation in the eastern provinces of North-Kivu, South-Kivu, Haut-Uele and Bas-Uele has continued to be unsettled and unpredictable and the general security situation in the province of Katanga has deteriorated due to actions by armed factions. In the other provinces of the DRC the general security situation has remained stable, apart from some isolated incidents. As to the general situation in Kinshasa, the report states:

“On 30 December 2013 in Kinshasa, three separate groups simultaneously attacked the headquarters of the Congolese army, the National Radio and N’Djili international airport. Since then no major security incidents have taken place. In instances where the police and the Agence Nationale de Renseignements (ANR) used violence, this was not directed against specific (population) groups. The rate of street crime in Kinshasa remains high. Armed gangs, kuluna, commit burglaries, extortion, threats and kidnappings. On 7 December 2013 the police in Kinshasa arrested ten such gangs as part of an operation called “Likofi” (the word for “punch” in Lingala). On 14 December 2013 operation Likofi II started, focussing on kuluna in uniform. The latter allegedly killed ten people within one month in shootings in the neighbourhoods of Ma Campagne and Binza Ozone in Ngaliema borough. On 25 February 2014 the Minister of the Interior announced that operation Likofi would be expanded to tackle armed bandits at national level. In the operations Likofi I − against the Kuluna in Kinshasa − and Likofi II − against undisciplined soldiers and police in Kinshasa − a total of 925 individuals have been apprehended and 593 brought before an investigating judge. Two police officers have been sentenced to death, three military and two civilian accused have been sentenced to 15 years’ imprisonment, one policeman to 20 years’ and one civilian to 10 years’ imprisonment for illegal possession of weapons.

New police force

On 6 April 2014, during a parade in the Kintambo cycle stadium in Kinshasa, General Célestin Kanyama – the chief police commissioner of Kinshasa in charge of the Likofi operation – presented the “new” police force, comprising law-abiding, disciplined officers who are immune to corruption. The police asked for a salary increase and better working conditions. On 1 October 2014 Prime Minister Matata Ponyo opened the national criminal investigation centre of the police, which has been built with funding from the British development aid and the EU. As from that date, the general population could use the toll-free emergency number 112.”

37. The official report of December 2014 does not deal specifically with people who have been involved with the MLC, mentioning only that an Amnesty Law approved by the DRC legislature on 3 February 2014 and signed by President Kabila on 11 February 2014 granted amnesty for acts of insurgency, acts of war and political offences committed between 18 February 2006 and 20 December 2013 by, amongst others, military personnel who had participated in the armed MLC uprising.

C. Relevant international material relating to the DRC

38. The Democratic Republic of Congo assessment of April 2001, compiled by the Immigration and Nationality Directorate (Country Information and Policy Unit) of the United Kingdom (UK) Home Office, observed:

“2.7 Most sectors of the economy are in a serious state of decline. Production and incomes continue to fall. The infrastructure of the country is also in a serious state of decline. Financial institutions have collapsed and the public health and education system have seriously deteriorated. The economy is characterised by subsistence activities, a large informal sector and widespread bartering. The public sector cannot provide basic public services and public sector employees are not paid on a regular basis. ...

3.14 ... In November 1998, a new rebel group emerged called the Mouvement pour la Liberation du Congo led by Jean-Pierre Bemba. The MLC based itself in the Equateur Province and has large numbers of former Zairean soldiers in its ranks. The MLC developed close ties with the Ugandan Government. In January 2001, the RCD-ML rebel group merged with Jean-Pierre Bemba’s MLC rebel group to form the Congo Liberation Front (CLF). Bemba is the leader of this newly formed group. The area under the control of the CLF corresponds with the areas that were under the control of the MLC and RCD-ML.

3.15 Intensive diplomatic efforts to promote a ceasefire and a negotiated settlement which meets the security concerns of neighbouring countries resulted in a ceasefire agreement by all belligerent countries on 10 July [1999]. The rebel groups - MLC and RCD - signed up to the ceasefire agreement in August 1999. The ceasefire agreement, called the Lusaka Peace Accord, sets out arrangements for an end to the fighting and the start of a national dialogue.

3.16 Despite the ceasefire agreement, numerous violations of the ceasefire have been reported in different parts of the country with each of the warring factions blaming one another for them. ... The civilian population have been adversely affected by the ongoing fighting. The Health Minister, Dr Mashako Mamba, has recently reported that there has been an upsurge in cases of war-related stress among the country’s civilian population. ...

3.20 On 16 January 2001, President Laurent Kabila was assassinated in the Presidential Palace in Kinshasa, reportedly by one of his soldiers. A government public announcement was made on 18 January confirming that Laurent Kabila had been assassinated. The country’s airports and borders were temporarily closed for security reasons but were soon re-opened. There were no reports of widespread civil unrest. Laurent Kabila’s funeral took place a few days later and his son, Joseph Kabila, was sworn in as President of the DRC on 26 January 2001. ...

5.17 The law allows for freedom of movement but the Government restricts freedom of movement in practice. ...

5.19 In Kinshasa, police and soldiers commonly erected roadblocks in order to extract bribes from taxibus drivers and passengers. On 18 January 2000, in the Gombe district of Kinshasa, there were unconfirmed reports that security forces forced passengers who allegedly were riding in excess of the capacity of a taxibus to pay bribes. There has reportedly been no investigation into this case. Also in January 2000, FAC (government) soldiers and police erected roadblocks in various districts of Kinshasa in order to extort money from each minibus passenger who crossed the roadblocks.

5.20 The Government requires exit visas for all foreign travel. Security forces occasionally hinder foreign travel by citizens, including journalists. There have been cases where political leaders have been denied exit visas. ...”

39. The report “Country Information and Guidance, Democratic Republic of Congo: treatment on return” published by the UK Home Office in September 2015 includes the following observations:

“2.1 Is a FAS [failed asylum seeker] and/or FNO [foreign national offender] who is to return to the DRC (voluntarily or by force) at risk of mistreatment or harm by virtue of having claimed asylum in the UK and/or having been convicted of an offence in the UK ?

2.1.1 In the country guidance case of BM and Others (returnees – criminal and non-criminal) DRC CG [2015] 293 (IAC) heard in March and April 2015 and promulgated on 2 June 2015, the Upper Tribunal (UT) of the Immigration and Asylum Chamber found, based on the evidence put before it which included statistics indicating that there have been approximately 700 documented returns of asylum and non-asylum cases from European states plus the USA, Canada and New Zealand between 2012 and 2014 (paragraph 80), that ‘... there is no substantiated allegation of arbitrary arrest or ill treatment of any DRC national who is a failed asylum seeker or a foreign national offender returning to his or her country of origin.’ (paragraph 76)

2.1.2 The Tribunal went on to find that:

‘i) Those who have been convicted of offences in the United Kingdom are not at real risk of being persecuted for a Refugee Convention reason or serious harm or treatment proscribed by Article 3 ECHR.

‘ii) Those who have unsuccessfully claimed asylum in the United Kingdom are not at real risk of persecution for a Refugee Convention reason or serious harm or treatment proscribed by Article 3 ECHR.’ (paragraph 88)

2.1.3 However, the UT did find those persons who are wanted / suspected by the DRC authorities for criminal activity in the DRC are likely to be at risk of harm:

‘The DRC authorities have an interest in certain types of convicted or suspected offenders, namely those who have unexecuted prison sentences in DRC or in respect of whom there are unexecuted arrest warrants or who supposedly committed an offence, such as document fraud, when departing DRC. Such persons are at risk of imprisonment for lengthy periods and, hence, treatment proscribed by Article 3 ECHR.’ (paragraph 88)

2.1.4 The Upper Tribunal clarified its findings made in paragraph 119(iv) of BM and Others with regard to the risk of using a false passport (or other document) in the case of BM (false passport) [2015] UKUT 467 (IAC) (12 August 2015). The Upper Tribunal found that:

‘The mere fact that an asylum claimant utilised a false passport or kindred document in departing the DRC will not without more engage the risk category specified in [119(iv)] of BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] 293 (IAC). The application of this guidance will be dependent upon the fact sensitive context of the individual case. The Tribunal will consider, inter alia, the likely state of knowledge of the DRC authorities pertaining to the person in question. A person claiming to belong to any of the risk categories will not be at risk of persecution unless likely to come to the attention of the DRC authorities. Thus in every case there will be an intense focus on matters such as publicity, individual prominence, possession of a passport, the standard emergency travel document arrangements (where these apply) and how these matters impact on the individual claimant.

2.1.5 Decision makers will therefore need to determine whether a person is of interest to the authorities for criminal activity in the DRC. The onus will be on the person to demonstrate that they are of interest to the authorities, including with relevant documentary evidence. ...

2.1.7 Decision makers should note that the Upper Tribunal in BM & Others also provided country guidance on treatment of members of the political group, Alliance de Patriotes pour la Refondation du Congo (Alliance of Patriots for the Re-establishment of the Congo; APARECO), see paragraph 88(iii) of the judgement.

2.1.8 For guidance and information on categories of persons who may be at risk of serious harm or persecution, including political activists (other than members of APARECO), see OGN [Operational Guidance Note] of May 2012.

2.2 If refused is the claim likely to be certifiable as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002?

2.2.1 Given the absence of substantiated evidence of mistreatment or harm on return, where a claim falls to be refused (and the fear is based on being a FAS and / or FNO) it is likely to be certifiable as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002.”

COMPLAINTS

40. The applicant complained under Article 3 of the Convention that he would be exposed to a real risk of treatment contrary to this provision if returned to the DRC.

41. The applicant further complained under Article 13 of the Convention that he did not have an effective remedy since, firstly, the Netherlands authorities had found that no credence could be attached to his account, and secondly they had failed to take into consideration the increased risk of his being subjected to treatment contrary to Article 3 if expelled, such increased risk being due to the authorities’ disclosure of his identity in the DRC during the preparation of their individual official report.

THE LAW

A. Complaint under Article 3 of the Convention

42. The applicant complained that if he were removed to the DRC he would be exposed to a risk of treatment proscribed by Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. The parties’ submissions

(a) The Government

43. The Government submitted that there were no substantial grounds for believing that the applicant would be exposed to a risk of treatment contrary to Article 3 if expelled to the DRC. The security situation in the DRC in general, and in Kinshasa in particular, is not so poor that removing the applicant to the DRC would in itself constitute a violation of Article 3. Nor had the applicant established that he would be exposed to a real risk of being subjected to treatment proscribed by Article 3 due to his individual circumstances.

44. The Government rejected the applicant’s criticism of the manner in which person-specific official reports are prepared. The allegations of corruption regarding the confidential contact person mentioned by the applicant had been investigated and no evidence of corruption had been found. The cooperation with this person had been terminated not because of the corruption allegations but because his identity had become known, rendering it impossible for him to continue his work. In the Government’s opinion, it was up to the applicant to identify concrete facts and circumstances demonstrating that the person-specific report drawn up in his case was incorrect. As they stand, the applicant’s submissions contain nothing to cast doubt on the correctness and the completeness of this person-specific report.

45. Whilst emphasising that in principle they have no reason to doubt the sincerity and objectivity of the ISHR as a whole, the Government submitted that doubts had arisen about the reliability and objectivity of its Congo section. Making reference to two judicial rulings, the Government stated that several reports prepared by this section of the ISHR had proved to be at variance with the truth and that great caution should therefore be exercised in using information provided by it when assessing asylum applications. As to the report prepared in the applicant’s case by this section, the Government notes that it was not substantiated by any relevant authentic documents.

46. As regards the report compiled by the CDDH, whilst emphasising that they have no reason to consider the CDDH as a whole to be an unreliable organisation, the Government submitted that two person-specific reports produced in July 2002 and December 2003 by the Ministry of Foreign Affairs had stated that a CDDH report must be signed by several different board members to be recognised as a CDDH report. The CDDH report submitted by the applicant, however, had been signed only by René Kabala Mushiya. Moreover, the appended statements by the applicant’s former airport colleagues contained neither confirmation nor denials of the applicant’s account of his flight from the DRC.

47. Furthermore, neither the report by the ISHR’s Congo Section nor the CDDH report presents plausible arguments demonstrating that the Ministry of Foreign Affairs was mistaken in its finding that both the summons of 2 November 2001 and the official declaration of loss of identity documents of 31 August 2000 were forgeries. Nor did these reports contain any evidence of an underground prison adjoining the DEMIAP office in the Gombe commune in Kinshasa or a military hospital in that commune. The Government therefore consider − also taking into account the vague and cursory nature of his statements in the proceedings on his asylum application − that the applicant has failed to make out a plausible case for his claim that he would face a real and foreseeable risk of treatment in violation of Article 3 if returned to the DRC.

(b) The applicant

48. In respect of person-specific official reports concerning asylum seekers from the DRC the applicant submitted that, from the late nineties until mid-2005, the Netherlands Ministry of Foreign Affairs had probably used the services of only one agent, namely a Congolese national, Mr X., whose investigations were characterised by notorious shortcomings, inaccuracies, falsifications and clear examples of corruption. On this point the applicant referred to the book “High treason, person-specific official reports” (Hoogverraad, individuele ambtsberichten) written by a Dutch lawyer who is a specialist in asylum cases. This book contains descriptions of cases of Congolese asylum seekers whom the author had represented and whose asylum applications were rejected on the basis of person-specific official reports that relied on investigations conducted under the aegis of the Netherlands Embassy in Kinshasa, almost certainly all carried out by Mr X. In all cases, thorough counter-investigations had been conducted by organisations like the ISHR and the CDDH and, on the basis of the results of these counter-investigations, all the person-specific reports referred to had been discounted as inaccurate.

49. The applicant also referred to two reports compiled by the National Ombudsman concerning person-specific official reports, namely no. 2007/131 concerning the investigation of an individual complaint filed by a Congolese asylum seeker, and no. 2007/200 concerning an investigation instituted on the Ombudsman’s own initiative, in which the latter had criticised the manner in which person-specific reports were prepared and had formulated a number of recommendations to improve their general transparency and quality.

50. The applicant also pointed out that, in addition to the two rulings referred to by the Government, there had been several other judicial rulings from which it could be concluded that person-specific reports produced by the Netherlands Embassy in Kinshasa had been discounted as being incorrect after thorough investigations by the same Congo Section of the ISHR as in the applicant’s case. The general conclusion that this section is not reliable was therefore, in the applicant’s opinion, unsubstantiated and unfounded. The same applied in respect of the CDDH.

51. The applicant argued that, as the person-specific reports drawn up by the Netherlands Embassy in Kinshasa are the fruits of notoriously inaccurate and unreliable investigations, the finding that the formal declaration of loss of identity documents of 31 August 2000 and the summons of 2 November 2001 were forgeries cannot be given the weight attributed to it by the Government. Nor were there any reasons to doubt the ISHR’s finding that the applicant was wanted for alleged serious violations of state security, as this information had been collected secretly from the prosecutor’s office and the ISHR was able to confirm that the official who had signed the summons was indeed an inspector at the prosecutor’s office.

52. Lastly the applicant contested the doubts voiced by the Government concerning the credibility of his statements about the MLC, his detention and the reason for his arrest in October/November 1998, his second arrest on 18 February 2001 and subsequent detention, and his escape from prison.

2. The Court’s assessment

53. The Court reiterates the general principles regarding the assessment of applications for asylum under Article 3 of the Convention, as set out most recently in F.G. v. Sweden [GC], no. 43611/11, §§ 111-127, 23 March 2016), including the principle that, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them.

54. The Court further reiterates that the material date for the assessment of the claimed risk is the actual date of expulsion. However, if an applicant has not yet been removed when the Court examines the case, the relevant time for assessing the existence of the risk of treatment contrary to Article 3 will be that of the proceedings before the Court. Although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see Chahal v. the United Kingdom, 15 November 1996, § 86, Reports of Judgments and Decisions 1996‑V; Saadi v. Italy [GC], no. 37201/06, § 133, ECHR 2008; M.A. v. Switzerland, no. 52589/13, § 54, 18 November 2014; and Khamrakulov v. Russia, no. 68894/13, § 64, 16 April 2015).

55. Turning to the circumstances of the present case, the Court notes that the applicant applied for asylum in the Netherlands in 2001, claiming that he had been arrested and detained twice on suspicion of having assisted certain individuals to leave the DRC by plane in an unlawful manner. Following adversarial proceedings in which the applicant was assisted by counsel, his asylum statement was ultimately not given credence by the Netherlands administrative and judicial authorities and his asylum request rejected accordingly.

56. The applicant’s main argument in respect of his complaint under Article 3 appears to be that the person-specific official report – as issued on 22 December 2004 following the applicant’s submission on 3 October 2003 of the summons dated 2 November 2001 and a report prepared by ISHR – was unreliable and that it should not have been taken into account in the determination of his asylum claim under the 1951 Refugee Convention.

57. On this point, the Court reaffirms that a right to political asylum is not, as such, guaranteed by the Convention and that, under the terms of Article 19 and Article 32 § 1 of the Convention, the Court cannot review whether the provisions of the 1951 Refugee Convention were correctly applied by the Netherlands authorities (see, for instance, I. v. the Netherlands (dec.), no. 24147/11, § 43, 18 October 2011).

58. Reiterating that as a general rule it is for the domestic courts to assess the evidence before them, and emphasising the subsidiary nature of the Court’s role, the Court observes that there was judicial review of the Minister’s negative decision of 16 December 2005 by both the Regional Court of The Hague and subsequently by the Administrative Jurisdiction Division and that it is not in dispute that both judicial bodies were completely independent, with full jurisdiction to determine whether the applicant’s removal would be compatible with Article 3 of the Convention. For the purposes of this determination the Regional Court of The Hague was presented with all the evidence in the case, the evidential material submitted by the parties, and the documents underlying the person-specific report produced by the Ministry of Foreign Affairs.

59. In these circumstances, the Court cannot find that the use of the person-specific report in the applicant’s case raises an issue under Article 3 of the Convention.

60. As regards the question of whether the applicant, who is still in the Netherlands, would be exposed to a real risk of being subjected to treatment in breach of Article 3, the Court notes that, apart from the summons of 2 November 2001 (see paragraph 13 above), the applicant has not substantiated his claim that he had attracted the negative attention of the DRC authorities. The Court furthermore observes that in the person-specific report drawn up in the applicant’s case it was stated that this summons was a forgery (see paragraph 17 above). The Court lastly notes that this finding was not contradicted in the subsequent report compiled by the CDDH (see paragraph (see paragraphs 23-24 above).

61. In these circumstances and in the absence of any indication either from the applicant’s spouse, who was traced by the CDDH (see paragraphs 23-24 above), or from his six children or three siblings, who have all remained in the DRC (see paragraphs 7, 23 and 24 above), that the DRC authorities had shown an interest in his whereabouts since he left the country in 2001, and having found nothing tangible in the case file demonstrating that since 2001 the applicant has attracted the negative attention of any governmental or non-governmental body or any private individual in the DRC, the Court finds that the applicant has failed to adduce evidence capable of demonstrating that there are substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if removed to the DRC

62. Consequently, this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention

B. Complaint under Article 13 of the Convention

63. The applicant complained that he had not had an effective remedy within the meaning of Article 13 of the Convention for the alleged violation of Article 3 of the Convention. Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

64. The Government contested that argument.

65. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they are secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with an “arguable complaint” under the Convention and to grant appropriate relief.

66. In the light of the Court’s aforementioned conclusion as regards the applicant’s complaint under Article 3, it cannot be said that he has an “arguable claim” under this provision (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V).

67. It follows that this complaint is manifestly ill-founded and must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 July 2016.

              Stephen PhillipsLuis López Guerra
RegistrarPresident

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