THIRD SECTION
Application no. 404/11
Asiata MURAMA and Khady MURAMA
against the Netherlands
lodged on 15 December 2010
STATEMENT OF FACTS
THE FACTS
The applicants, Ms Asiata Murama and Ms Khady Murama, are citizens of Guinea. The first applicant was born in 2001 and the second applicant was born in 1982, and they are currently staying in the Netherlands. They are represented before the Court by Mr. B.W.M. Toemen, a lawyer practising in Boxtel.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The second applicant lodged her first asylum application on 13 November 2000, claiming to hail from Rwanda. Her asylum application was rejected but she was granted a provisional residence permit, valid until 13 November 2001.
On 28 June 2001 the first applicant was born in the Netherlands.
On 21 October 2003 the second applicant applied for an indefinite asylum permit, which was rejected on 25 April 2005. The second applicant appealed this decision and on 28 March 2006 the Regional Court of The Hague (rechtbank) dismissed her appeal. Although possible, no further appeal was lodged.
In 2006 the applicants also applied for asylum in Belgium, but were sent back to the Netherlands pursuant to Council Regulation no. 343/2003 (Dublin II Regulation” hereinafter “the Dublin Regulation).
On 26 March 2010 the second applicant, also on behalf of the first applicant, lodged her second asylum application now stating that she hailed from Guinea. She submitted her Guinean passport which was found to be authentic. She claimed, inter alia, that the first applicant would be at risk of female genital mutilation (FGM) upon return to Guinea.
On 1 April 2010 the Minister of Justice (Minister van Justitie; the Minister) rejected the application. Although the first applicant would be at risk of being subjected to FGM in Guinea, the applicants could be living in Conakry where they might avoid this practice. Furthermore, the second applicant had followed secondary education and thus was deemed to be able to protect her daughter. In this respect the Minister referred to an official report on Guinea of the Minister of Foreign Affairs of June 2009 which stated that women who have enjoyed secondary education are able to avoid that their daughters will be subjected to FGM.
On 1 April 2010 the second applicant, also on behalf of the first applicant, appealed this decision and requested a provisional measure to the effect that they would not be expelled for the duration of the procedures before the Regional Court.
On 23 April 2010 the Regional Court of The Hague sitting in Almelo accepted the applicant’s appeal, quashed the decision of 1 April 2010 and ordered the Minister to take a fresh decision. It held that the Minister had given insufficient reasons why the second applicant would be able to avoid that the first applicant would be subjected to FGM. According to the official report of the Minister of Foreign Affairs of June 2009 only women with at least secondary education and who are financially independent might be able to avoid FGM. It further held that in the same report it was mentioned that 96% of the female population in Guinea had been subjected to FGM and that the social pressure to undergo FGM was very high.
The Minister appealed this judgment. On 6 October 2010 the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) accepted the Minister’s appeal, quashed the judgment of 23 April 2010 and dismissed the applicants’ initial appeal. It found that as the second applicant hailed from Conakry and had enjoyed secondary education, she should be regarded as being able to protect the first applicant against FGM.
No further appeal was possible.
On 15 December 2010 the applicants lodged their complaint with the European Court on Human Rights.
On 8 June 2012 the applicants’ representative contacted the Repatriation and Departure Service (Dienst Terugkeer en Vertrek; DT&V) of the Immigration and Naturalisation Services by email and requested to be informed at least one week in advance of a possible expulsion in order to be able to request an interim measure under Rule 39 of the Rules of Court.
On 12 June 2012 the aliens’ police (Vreemdelingenpolitie) visited the house of the applicants, in order to place them in aliens’ detention for expulsion purposes (Vreemdelingenbewaring). The applicants were not at home at that moment, but when they learned of this visit, they informed their representative. Their representative contacted the DT&V and asked why he had not been informed about the imminent expulsion. He was informed that DT&V had chosen not to inform the representative beforehand.
On 12 June 2012 the applicants requested the Court an interim measure under Rule 39 of the Rules of Court.
On 14 June 2012 the Court, under Rule 39 of the Rules of Court, indicated to the Netherlands Government that the applicants should not be expelled to Guinea pending the proceedings before the Court.
On the same date the Acting President requested the applicants to reply to certain factual questions in accordance with Rule 54 § 2 (a) of the Rules of Court.
COMPLAINT
The applicants complained under Article 3 of the Convention that there are substantial grounds for believing that the first applicant will be subjected to treatment prohibited by that provision if they were expelled to Guinea.
QUESTIONS TO THE PARTIES
Factual questions/requests to the applicants:
1. The applicants are requested to submit to the Court documents concerning the second applicant’s first asylum application.
2. What is the exact family background of the applicants in Conakry, Guinea? Which family members live there? What is the wider family’s stance on FGM? Would they insist on subjecting the first applicant to FGM?
3. Would the applicants be able to live independently of their family in Conakry? Is it possible for the second applicant to protect the first applicant from being subjected to FGM? If so, how would the second applicant be able to do so? If not, why not?
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