THIRD SECTION
DECISION
Application no. 28199/12
D.T.
against the Netherlands and Georgia
The European Court of Human Rights (Third Section), sitting on 15 September 2015 as a Chamber composed of:
Luis López Guerra, President,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc,
Branko Lubarda,
Carlo Ranzoni, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 26 April 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 observations submitted by the Netherlands Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr D.T., is a Georgian national, born in 1973, and currently staying in the Netherlands. He was represented before the Court by Ms M. de Boer, a lawyer practising in Lelystad.
2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
3. The Government of Georgia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court), did not avail themselves of this right.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows. Some of the facts are disputed.
5. On 14 May 2007, the applicant entered the Netherlands where on 29 May 2007 he applied for asylum, submitting in the course of three interviews with immigration officials that he had been working as a military trained senior border guard at the border between Georgia and Azerbaijan. Between the respective border posts lies a neutral zone via which drugs are being smuggled into Georgia. One of the applicant’s main responsibilities had been to combat drug trafficking.
6. On 10 April 2007 the applicant had been ordered by his superior officer to escort a person, Mr X, from the neutral zone to Georgia, evading the normal border controls. On 16 April 2007 he had again been ordered to escort X across the border to Georgia on 17 April 2007. On the same day, he had received a tip that a drugs trafficker had been sighted in the neutral zone. The applicant had gone to the market located in the neutral zone where he was discretely shown the trafficker whom he recognised as X. The applicant had passed on this information to his superior, Mr L., who responded by telling the applicant that he had checked this information and that it was wrong.
7. On 20 April 2007 the applicant had once more been ordered by Mr L. to escort X across the border. The applicant had refused. One hour later he had received a telephone call from his mother who apparently was held hostage by one of the applicant’s colleagues. He had then felt compelled to take X across the border into Georgia, which he had done.
8. On 21 April 2007 the applicant had asked his superior, Mr L., for explanations and informed his superior that he intended to do something about it. He had then written a memo to Mr B., the Chief of the Border Police as well as to the Deputy Minister of Internal Affairs, explaining the situation and asking for an inquiry, or to transfer or dismiss the applicant. He had left this memo at Mr B.’s secretariat. The next day, he had been summoned to his superior Mr L. who showed him the memo and told him that he should stop writing and follow orders. The applicant had then resumed his work and nothing special had occurred until 7 May 2007. On that day, Mr L. had ordered the applicant for a fourth time to escort X across the border. The applicant was told that it would be the last time and he saw on Mr L.’s table a proposal to promote the applicant to the next rank, which promotion had been planned already for some time.
9. The applicant had taken X across the border into Georgia and had returned with his car to an agreed spot at 7 p.m. to pick up X again and bring him back to the neutral zone. When he had arrived at the designated place, X had been accompanied by two persons, one of them wearing a jacket bearing the letters SOD – which stands for Special Operations Department – and the other one dressed in plain clothes. The two men brought X to the applicant’s car. X and the plain-clothed man took a seat next to each other in the car and the applicant was given to understand that they had something to discuss and needed some privacy. Thereupon the applicant and the SOD man had walked away some 70 metres from the car. The SOD man had taken an interest in the applicant’s service weapon. The applicant had then heard that X and the plain-clothed man had started shouting at each other. The plain-clothed man had then approached the applicant and the SOD man, telling the latter that X had not agreed. The SOD man, who was then holding the applicant’s service weapon in his hands, had walked to the car, opened the door and fired three shots, killing X. The applicant had then run away as fast as he could and, it already being dark, had managed to hide himself in the nearby forest. After a short unsuccessful search for the applicant, the men had left.
10. As an Azeri drug trafficker had been killed with the applicant’s service weapon and in the applicant’s car, and as the perpetrators had also tried to kill him, the applicant felt trapped between two fires and had decided to flee the country, fearing problems from the side of the SOD and/or the Azeri drugs mafia. With the help of a colleague, who had managed to remove a plastic bag with documents belonging to the applicant from the applicant’s office room and give these to the applicant, the applicant had managed to flee the country on 5 May 2007. Via Turkey, he had travelled to the Netherlands.
11. On 11 February 2008, the Deputy Minister of Justice (Staatssecretaris van Justitie) requested the Minister of Foreign Affairs to conduct an inquiry in relation to the applicant’s asylum request.
12. In August 2008, the applicant was informed by his mother that she had had a visit from an official of the Georgian Ministry of Interior Affairs who had known that the applicant was in the Netherlands and who had asked her questions relating to the applicant’s asylum account given to the Netherlands authorities and who had shown her documents submitted by the applicant to the Netherlands authorities. The applicant’s comments about this visit to the Netherlands refugee aid agency led to a conversation on 13 October 2008 between the applicant and the person at the Ministry of Foreign Affairs dealing with the inquiry in Georgia.
13. On 8 December 2008, the Minister of Foreign Affairs transmitted a person-specific official report (individueel ambtsbericht) concerning the applicant to the Deputy Minister of Justice. According to this report, two identity documents and a veteran’s card in the applicant’s name – submitted by the applicant in the asylum proceedings – were authentic but there was a reasonable doubt about the authenticity of another document. The report further contained the verified registration as home owner of the applicant’s mother and brother at a specific address. However, it had not been possible to verify whether the applicant had been registered as living at that address or at the address of the military base. The report also stated that the applicant had worked as a border guard until May 2007, that reportedly he had been dismissed due to a reorganisation, that various sources had indicated that he was not wanted by the SOD, and that he was not wanted in relation to the commission of a criminal offence. It further contained names and functions of persons mentioned by the applicant in his account.
14. On 19 December 2008, after having been granted access to the underlying materials of the person-specific official report of 8 December 2008, the Immigration and Naturalisation Department (Immigratie- en Naturalisatiedienst) of the Ministry of Justice concluded that this report, both as regards its content and procedure, had been drawn up in a careful manner and that it provided insight in a transparent manner, and informed the Minister of Foreign Affairs accordingly.
15. On 16 April 2009 the Deputy Minister of Justice rejected the applicant’s asylum request. Mainly on the basis of the outcome of the investigation carried out by the Minister of Foreign Affairs of the applicant’s claims as set out in the person-specific official report, the Deputy Minister concluded that no credence could be attached to the applicant’s account and that it had not been established that the applicant, if expelled to Georgia, would be exposed to risks from the side of the Georgian authorities or the drugs mafia from Azerbaijan.
16. On 18 May 2009, the applicant filed an appeal against this decision with the Regional Court of The Hague and filed the grounds for this appeal on 22 June 2009.
17. On 27 August 2009, the applicant was informed that the impugned decision of 16 April 2009 had been withdrawn and that a fresh decision would be taken.
18. In a fresh decision taken on 12 November 2009, the Deputy Minister of Justice again rejected the applicant’s asylum request. Although accepting the veracity of the applicant’s account that, at the orders of his superiors, he had taken a person – who turned out to be a drug trafficker – across the border into Georgia without the papers and luggage of this person being checked and his account of the killing of this trafficker, the Deputy Minister rejected as not credible the claimed risk of persecution, taking into account that – according to the contents of the person-specific official report – several sources had stated that the applicant was not wanted by the SOD and that he was not wanted either as a suspect of a criminal offence. The Deputy Minister further considered that the general situation in Georgia was not such that all persons from that country qualified for an asylum-based residence permit and that the applicant could turn for protection to the Georgian authorities in so far as the alleged Article 3 risk would emanate from corrupt officials or the Azeri drugs mafia.
19. The applicant’s appeal against this decision was accepted on 23 December 2010 by the Regional Court of The Hague sitting in Utrecht. It 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. It accepted the applicant’s argument that the investigation on which the person-specific report was based had been incomplete as his registration as living at the address of his mother and brother could have been easily verified on the internet by consulting an electoral list and as it could be deduced from the underlying materials that a document of 8 August (year unknown) referred to in the underlying materials was missing. The court also accepted the applicant’s argument that the finding in the person-specific official report that the applicant had been dismissed following a reorganisation was contradicted by the applicant’s statements, which had not been rejected as not credible, that until his departure from Georgia he had followed professional training programmes and that he was about to be promoted. The Regional Court lastly disagreed with the Deputy Minister that the applicant could have turned to the Georgian authorities for protection.
20. On 3 February 2011, the Minister for Immigration, Integration and Asylum Policy filed a further appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State. At the latter’s request, the Minister of Foreign Affairs provided the Administrative Jurisdiction Division on 28 June 2011 with the materials underlying the person-specific official report of 8 December 2008. In accordance with section 8:29 of the General Administrative Law Act (Algemene Wet Bestuursrecht), the Minister of Foreign Affairs requested the Administrative Jurisdiction Division to order that (parts of) these materials were to be disclosed only to the Administrative Jurisdiction Division. On 11 July 2011, the Administrative Jurisdiction Division decided that the access restriction requested by the Minister of Foreign Affairs was justified. It subsequently sought and obtained the parties’ consent to determine the further appeal also on the basis of those underlying materials which had not been disclosed to the parties but only to the Administrative Jurisdiction Division.
21. On 24 February 2012, the Administrative Jurisdiction Division accepted the Minister’s appeal, quashed the impugned judgment and rejected the applicant’s appeal against the decision of 12 November 2009. It held that the mere circumstance that the Minister of Foreign Affairs had been unable to obtain information about the applicant’s registration gave no cause to find that the inquiry into the registration or in respect of other elements had been careless and incomplete. It further rejected the applicant’s claim in respect of the allegedly missing document dated 8 August, finding that the mention thereof was an obvious clerical error and that the mention concerned had in fact referred to another document which had been taken into account in the decision-making process. It further found that the Regional Court had unjustly held that the contradiction between the applicant’s dismissal following a reorganisation and his statements about an imminent promotion concerned an essential part of his asylum account. According to the Administrative Jurisdiction Division, the core of the asylum account was the alleged fear of persecution by the SOD in that he was wanted by the SOD for having witnessed the murder of X committed by a SOD collaborator whereas it was stated in the person-specific official report that various sources had indicated that the applicant was not wanted by the SOD. It therefore did not find it established that the person-specific official report had been drawn up in a careless manner or that it was incomplete. It also found no concrete indications in the applicant’s other submissions for doubting the correctness or completeness of this report. It lastly accepted the Minister’s view that it had not been shown that the incident with the SOD collaborator was representative for the entire police apparatus in Georgia, that it had not been established by the applicant that the Head of the SOD was involved in drugs trafficking and that, bearing this in mind, the applicant could have turned for protection to the Georgian authorities. No further appeal lay against this ruling.
B. Relevant domestic law and practice
22. The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012).
23. At the material time, the Government’s policy on asylum-seekers from particular countries was devised by the Deputy Minister of Justice and his successor, the Minister for Immigration, Integration and Asylum Policy, on the basis of, inter alia, official country assessment reports drawn up by the Minister of Foreign Affairs on the countries of origin of asylum-seekers, but also reports published by United Nations agencies or NGOs (non-governmental organisations). There was no country-specific policy in respect of asylum-seekers from Georgia.
24. According to the Government, person-specific reports (individuele ambtsberichten) are researched with the assistance of the Netherlands diplomatic missions in the countries concerned. In investigating information and documents submitted by asylum-seekers, the Ministry of Foreign Affairs enlists the services of agents who are carefully screened for objectivity and reliability on the basis of information supplied by institutions such as NGOs, international organisations like the IOM (International Organisation for Migration) as well as third-country embassies that can make disinterested, informed assessments. Agents must satisfy high demands; they must be discreet and painstaking, and have extensive networks and access to sources of information. Agents receive instructions before they begin their investigation, and their findings are discussed in meticulous detail when they report back to the embassy. The investigation is organised in such a way that the authorities are never made aware of the alien’s identity, to ensure that the Ministry of Foreign Affairs investigation does not cause any problems for the alien in his/her country of origin.
25. The Ministry of Foreign Affairs never provides information to the alien concerned or to his authorised representative about the identity of the agents or informants who have assisted with the investigation, because this could expose them to serious danger from the authorities or from the alien or his relatives or associates. Nor does the Ministry ever provide information about the methods and techniques used to examine the authenticity of documents, to avoid facilitating the making of better forgeries in the future or enabling future asylum-seekers to improve their accounts in support of their applications.
26. In a ruling given on 16 April 1998, the Legal Uniformity (Aliens Affairs) Division (Rechtseenheidskamer; “REK”) of the Regional Court of The Hague held that the duty of due care when preparing a decision of an administrative law nature includes providing access to the documents on which a person-specific report is based. In cases in which a decision is based on a person-specific report, an employee of the Ministry of Security and Justice’s Office for Country Information and Language Analysis (Bureau Land en Taal) must examine the report to determine, on the basis of the underlying materials, whether due care was taken in drawing it up, both substantively and procedurally, and whether the report is clear. This is referred to as the “REK check”.
27. Furthermore, with the parties’ consent, the Regional Court and/or the Administrative Jurisdiction Division may base its judgment also on information that has not been made available to the alien concerned. Before doing so, the Regional Court and/or the Administrative Jurisdiction Division decides, using a different panel of judges, whether the restrictions placed on the alien’s access to the underlying document of a person-specific report are justified.
28. The most recent general official country assessment report (algemeen ambtsbericht) on Georgia was published by the Ministry of Foreign Affairs on 15 December 2009. It covers the period from May 2006 to September 2009. As regards corruption it reads:
“In order to professionalise the judiciary and to combat corruption, the government of Georgia started in 2005 an extensive and fundamental reform of the judiciary. Many judges of the old regime were dismissed or placed on a reserve list. In addition, several judges resigned themselves. During the reporting period various measures were taken to increase the quality and independence of the judiciary. ...
One of the most visible reforms after the Rose Revolution of November 2003 concerns the police force. Corruption, abuse of power, extortion, torture practices and a dismissive attitude towards those seeking protection against criminality were being associated with the police in the past. With the assistance of the OSCE [Organisation for Security and Cooperation in Europe] the police was fundamentally reorganised. The number of staff was reduced drastically and the salaries of agents in active duty were increased by tenfold. After the reorganisation, the police force consists of traffic patrol police, criminal investigation police and border police. The new police force falls under the competence of the Ministry of Interior Affairs. In addition, in June 2006, an improved Code of Ethics for the police entered into force. Corruption within the police force has almost entirely disappeared and the trust of the general population in the functioning and actions of the police during the reporting period has increased. Citizens with complaints about the police can file them at specifically designated reporting points.”
COMPLAINTS
29. The applicant complained under Article 3 of the Convention that the Netherlands authorities, if they expel him to Georgia, will expose him to a real risk of treatment prohibited by this provision. He further complained that, on this point, he did not have an effective remedy in the Netherlands as guaranteed by Article 13 of the Convention.
30. No complaint was formulated by the applicant against Georgia.
THE LAW
31. The Court notes at the outset that, although the applicant indicated in the application form that the application was also brought against Georgia, he has not formulated any complaint against Georgia. In these circumstances, the Court considers that no valid application has been brought against Georgia and this part of the application must be rejected as being incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention.
32. The applicant complained that the Netherlands authorities, if they were to remove him from the Netherlands to Georgia, would violate his rights under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
33. The Netherlands Government submitted that, although various sources – such as the country assessment report on Georgia drawn up on 15 December 2009 by the Netherlands Minister of Foreign Affairs, Amnesty International Report 2014/15 on Georgia of 25 February 2015, Human Rights Watch World Report 2015 (Georgia) of 29 January 2015 and the Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, published on 12 May 2014 following his visit to Georgia from 20 to 25 January 2014 (CommDH(2014)9 – indicate that the human rights situation in Georgia still gives cause for concern on a number of points, the general human rights situation in Georgia is not so poor that returning the applicant to Georgia would in itself constitute a violation of Article 3 of the Convention.
34. Although the Netherlands Government found no reason to doubt the facts underpinning the applicant’s account of his reasons for seeking asylum, they also noted that, according to information gathered from various sources and indicated in the person-specific report drawn up in the applicant’s case, the applicant was not being sought by the Georgian SOD and he was equally not wanted in Georgia for a criminal offence. They further submitted that their investigation in Georgia had been conducted with sufficient care and sufficient safeguards had been put in place to ensure that the Georgian authorities would not learn of the applicant’s whereabouts and his asylum application in the Netherlands as a result of the investigation.
35. The Netherlands Government further submitted that the applicant had adduced no concrete indications for his claim that he was wanted in Georgia by the SOD or in connection with the commission of a criminal offence. These assertions were based solely on his own suspicions. The Government also referred to various international reports, according to which the Georgian authorities were pursuing an active policy aimed at tackling corruption which had virtually eliminated small-scale corruption in Georgia and which now aimed to address corruption even at higher levels of Government. Against this background, the Netherlands Government saw no reason why the applicant could not rely on the protection of the Georgian authorities if he feared corrupt individuals within the SOD or the drugs mafia, or why the Georgian authorities would be incapable or unwilling to provide him with the necessary protection.
36. The applicant maintained that, after having acted as a whistle-blower and brought the matter to the attention of his superior and the latter’s superior, he must be regarded as having a well-founded fear of being subjected to treatment proscribed by Article 3 by SOD employees as well as other employees of the Georgian Ministry of Internal Affairs.
37. The applicant further submitted that the fact that he was not formally wanted by the SOD did not mean that he did not risk being subjected to inhuman treatment in Georgia by certain corrupt persons working for the SOD of the Minister of Internal Affairs. Moreover, as his service weapon with which X had been killed was in the possession of one of the SOD employees, the applicant could be put under pressure for bribery.
38. The applicant also challenged the person-specific report that had been drawn up in his case, as the Netherlands domestic authorities’ check did not go so far as to verify whether or not the person(s) having conducted the inquiry in Georgia was/were actually working for the Georgian Ministry of Internal Affairs whereas neither the applicant himself nor his representative had had the opportunity to check the reliability of this/these person(s). In any event, as his mother had been questioned about the applicant by a person who had identified himself with a pass of this Ministry, the Georgian authorities must be considered as being aware of the applicant’s presence and asylum request in the Netherlands. Furthermore, no investigation had been made into the reported reorganisation of the border police and whether this had had any consequences for the applicant.
39. As to the question whether he could have turned for protection to the Georgian authorities, the applicant submitted that he had in fact sought the protection of the Deputy Minister of Internal Affairs and that, this having been unsuccessful, it could not be expected of him to take his request to a higher level.
B. The Court’s assessment
40. As regards the removal of aliens, the Court reiterates the general principles as set out most recently in M.E. v. Denmark (no. 58363/10, §§ 47-51 with further references, 8 July 2014).
41. Turning to the present case, the Court notes that the Netherlands Government accepted the veracity of the applicant’s account that X had been killed in the applicant’s car with the applicant’s service weapon by an employee of the SOD. However, the Government did not find it demonstrated that, on the basis of these facts, the applicant would be wanted by the SOD or by the Georgian criminal justice authorities nor did they find it demonstrated that the Georgian authorities would not be able or willing to protect him against any negative attention from individual corrupt officials or other criminals involved in the scheme in which X had been involved.
42. The Court acknowledges that it is often difficult to establish, precisely, the pertinent facts in cases such as the present one. It accepts that, as a general principle, the national authorities are best placed to assess the credibility of the case since it is they who have had an opportunity to see, hear and assess the demeanour of the individuals concerned (see R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010).
43. As noted above, the Netherlands administrative and judicial authorities did not question the applicant’s account as such but did not find established that the applicant was in need of international protection in the Netherlands. Against this background, the Court will now continue by examining whether the information before it calls for a departure from the domestic authorities’ conclusions.
44. In this respect the Court notes that, according to the general official country assessment report on Georgia of 15 December 2009 which covers the material period in the applicant’s case, corruption was one of the main reasons for a significant reorganisation of the police force in Georgia which entailed, inter alia, a drastic staff reduction. The Court further notes that, according to the findings of the inquiry conducted in Georgia by the Netherlands authorities as set out in the person-specific report, the applicant had reportedly been dismissed from the border police due to a reorganisation. This person-specific information matches the general information set out in the general official report of 15 December 2009. The Court further notes that – apart from the person who questioned the applicant’s mother and in respect of whom the Court is satisfied that this person acted within the framework of the inquiry conducted by the Netherlands mission in Georgia – there is no indication in the case-file that, since the applicant’s departure from Georgia in May 2007, he has been the object of the negative attention of any Georgian State agent or State body or of any individual directly or indirectly involved in the facts described by the applicant in his asylum account.
45. It has, therefore, not been established that the applicant, if expelled to Georgia, would face a real risk of being subjected to treatment in breach of Article 3 of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
46. The applicant further complained under Article 13 of the Convention that he did not have an effective remedy in respect of his complaint under Article 3 of the Convention. Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] 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.”
47. The Government contested that argument.
48. 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.
49. Having regard to the Court’s conclusion above as regards the applicant’s complaint under Article 3, it cannot be said that he has an “arguable claim” under this provision. Article 13 is therefore inapplicable to his case (see, for example, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
50. The application of Rule 39 of the Rules of Court accordingly comes to an end.
For these reasons, the Court, unanimously,
Declares inadmissible the application.
Done in English and notified in writing on 8 October 2015.
Stephen PhillipsLuis López Guerra
RegistrarPresident
Full & Egal Universal Law Academy