THIRD SECTION
DECISION
Application no. 21258/03
by M.E.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 22 April 2008 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 8 July 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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
The applicant, Mrs M.E., is a national of the Democratic Republic of Congo (hereafter “DRC”), who was born in 1970 and lives in Gorinchem. The President of the Chamber acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court). She was represented before the Court by Mrs L. Garnett, a lawyer practising in ‘s‑Hertogenbosch. The Dutch Government (“the Government”) were represented by their Agents, Ms J. Schukking and Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 May 2000 the applicant applied for asylum in the Netherlands, submitting inter alia that she had been a member of a prohibited political movement (the Mouvement National Congolais / Lumumba Originel) since 1995 and had been responsible for making propaganda for this movement aimed at women. In connection with these activities she had been arrested, questioned and detained, in the course of which she had been ill-treated.
The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum application on 1 September 2000. The applicant’s objection (bezwaarschrift) against this decision not enjoying suspensive effect, she applied to the President of the Regional Court (arrondissementsrechtbank) of The Hague for an interim measure in order to obtain a stay of expulsion pending the objection proceedings. On 22 April 2002 the provisional-measures judge (voorzieningenrechter) of the Regional Court rejected the applicant’s request for an interim measure. Nevertheless, the applicant was not at that time expelled and she was still in the Netherlands when, on 8 August 2002, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie – the successor to the Deputy Minister of Justice) rejected the applicant’s objection against the decision of 1 September 2000.
On 3 September 2002, the applicant filed an appeal as well as a new request for an interim measure with the Regional Court of The Hague. On 8 January 2003, following a hearing held on 18 November 2002, the provisional-measures judge of the Regional Court of The Hague rejected the applicant’s request for an interim measure and rejected her appeal against the Minister’s decision of 8 August 2002. The provisional-measures judge found, inter alia, that the Minister could reasonably have concluded that the applicant had made statements about her alleged membership of the political movement and her detention and escape that were not credible.
No further appeal lay against this decision.
In letters of 31 August and 24 October 2007 the applicant informed the Court that she had been granted a residence permit pursuant to the terms of a general amnesty (generaal pardon) for certain rejected asylum seekers who had applied for asylum before 1 April 2001 but that she nevertheless wished to maintain her application.
COMPLAINTS
The applicant complained under Article 3 of the Convention that she would face a real risk of being subjected to treatment contrary to that provision if forced to return to the DRC. She further complained under Article 13 of the Convention that her complaint under Article 3 had not received an independent and rigorous judicial scrutiny since the Regional Court had been bound by the (Deputy) Minister’s establishment of the facts and assessment of the credibility of her account.
THE LAW
A. Alleged violation of Article 3 of the Convention
The applicant originally complained that a forced return to the DRC would be in violation of Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The applicant argued that the decision on her asylum application had been incorrect and that, in spite of having been granted a residence permit, she did not enjoy protection against expulsion. If, for whatever reason, it was decided to expel her, her claim that such an expulsion would be in breach of Article 3 would not be entertained by the Dutch authorities, based as it would be on the same account she had given previously.
The Government submitted that the applicant’s assumption that she continued to be eligible for expulsion to the DRC was unjustified. Her expulsion was no longer an issue since she was now in possession of a residence permit. This was not altered by the fact that the permit had been issued within the framework of a general amnesty.
The Court notes that the applicant has now been granted a residence permit in the Netherlands and that she is, therefore, at the present time no longer at risk of being expelled. The question whether at some stage in the future she might once again be faced with a possibility of expulsion is, therefore, currently purely hypothetical and does not constitute a situation in which the applicant can claim, within the confines of the present proceedings, to be a “victim” within the meaning of Article 34 of the Convention.
It would thus appear that the matter of which complaint was made has been resolved. In these circumstances, and having regard to Article 37 § 1 (b) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of this part of the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of this part of the application to be continued. Accordingly, in so far as the complaint under Article 3 is concerned, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out the list.
B. Alleged violation of Article 13 of the Convention in conjunction with Article 3
The applicant complained that the scope of the judicial review of the (Deputy) Minister’s decision to reject her asylum application, including her claim that her removal to the DRC would be in breach of Article 3, was too limited, depriving her of an effective remedy as guaranteed by Article 13, which latter provision reads as follows:
“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.”
The Court observes that the applicant has not indicated for what reason she was of the view that the examination of this complaint ought to be continued despite her having been granted a residence permit. In any event, the Court sees no reason to reach a different conclusion on this matter than the one it arrived at in the case of Mir Isfahani v. the Netherlands (dec., no. 31252/03, 31 January 2008) which also concerned a rejected asylum seeker who had been issued a residence permit pursuant to the terms of the general amnesty and who also complained under Article 13 in conjunction with Article 3 of the scope of the judicial review which had been available to her.
Having regard to the circumstances of the present case, therefore, and referring to the reasoning contained in the above-mentioned decision in Mir Isfahani, the Court considers that it is no longer justified to continue the examination of this part of the application within the meaning of Article 37 § 1 (c) of the Convention. Accordingly, also as regards the complaint under Article 13 in conjunction with Article 3, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago Quesada Josep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy