AS TO THE ADMISSIBILITY OF
Application No. 31026/96
by Bofuwa IYALHO
against the Netherlands
The European Commission of Human Rights sitting in private on
24 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 April 1996 by
Bofuwa IYALHO against the Netherlands and registered on 16 April 1996
under file No. 31026/96;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
25 June 1996 and 28 August 1996 and the observations in reply
submitted by the applicant on 27 August 1996 and
3 October 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Zairean citizen, born in 1969, and at present
residing in 's-Gravendeel, the Netherlands. Before the Commission she
is represented by Mr. J.B.J.G.M. Schyns, a lawyer practising in Venlo,
the Netherlands.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
The applicant requested asylum or, alternatively, a residence
permit for compelling reasons of a humanitarian nature in the
Netherlands on 30 December 1994. In interviews with a liaison officer
of the Immigration and Naturalisation Service (Immigratie- en
Naturalisatiedienst) of the Ministry of Justice (Ministerie van
Justitie) on 30 and 31 December 1994 she stated that she had been
brought up in the family of a niece after her parents had died in an
accident when she had been three years old. She had a son, born in
1985, who was still living with this niece.
Her niece was married to a major in the Zairean national army and
they had received frequent visits from a general called E.B. who was
a prominent and powerful man in Kinshasa. One afternoon at the end of
July 1994 two soldiers had come to the house and had told the applicant
that General E.B. had asked them to collect her. Upon arrival at the
General's office he had asked the applicant to marry him. The applicant
had refused since she was already engaged to Mr. B.M. and she knew that
the General already had three wives.
The General had reacted angrily to her refusal and had had her
locked up in his office until 22.00 hours that evening. Upon her
release she had told her niece what had happened. Her niece had
requested the applicant to leave the house as she was afraid that the
applicant might cause problems for her or her husband. During the month
of August 1994 the applicant had stayed with a friend in Kinshasa.
However, she assumed that the General had had her traced as almost
every weekend she had been taken to his office by his men and the
General had repeated his proposal of marriage. Her friend had also
become afraid of problems and the applicant had stayed with various
acquaintances until 24 October 1994.
On 24 October 1994, when the applicant had been visiting her
fiancé, five soldiers in civilian dress had entered the house and had
started beating her fiancé. When she had tried to intervene she had
been pushed against a wall and had lost consciousness. She had come to
in a cell.
During her detention she had several times been raped by members
of the "Garde Civile". She was only given food when the soldiers felt
like feeding her. On 8 December 1994 she had fallen ill and had been
taken to hospital. Two days later she had received a visit from her
niece and a friend, Mrs. M.M. Whilst pretending to go for a walk with
her visitors she had managed to escape. She had been taken to a village
near Kinshasa where she had been informed by her niece that her fiancé
had died.
Her niece had paid Mrs. M.M. to enable the applicant to
leave the country. On 28 December 1994 she had travelled by aeroplane
from Kinshasa to Belgium, using the passport of the daughter of Mrs.
M.M., who was living in Belgium. Upon arrival she had gone to the
Netherlands where Mrs. M.M., who had accompanied her on her journey,
had handed her her own passport.
The State Secretary for Justice (Staatssecretaris van Justitie)
rejected the applicant's requests on 15 November 1995 and the applicant
filed a notice of objection (bezwaarschrift). She also requested the
President of the Aliens' Chamber of the Regional Court of The Hague,
sitting at Zwolle (President van de Vreemdelingenkamer van de
Arrondissementsrechtbank 's-Gravenhage, zittinghoudende te Zwolle) to
issue an interim measure (voorlopige voorziening) enabling her to await
the result of the notice of objection in the Netherlands.
Following a hearing on 12 January 1996 the President of the
Regional Court rejected the request for an interim measure on
19 January 1996. He held that the applicant had never been politically
active and was not regarded as an important political opponent. Also,
it had not been shown that the applicant had experienced problems from
the side of the Zairean authorities as a result of her refusal to
become a general's wife or mistress. The President further considered
that the applicant had not submitted anything in support of her
account: no documents concerning the death of her fiancé or concerning
her being wanted by the Zairean authorities had been provided. Finally,
the President found the applicant's account of her escape from hospital
not credible and considered that she could have found refuge elsewhere
in Zaire.
Finding it not reasonable to believe that any further
investigation could contribute to an assessment of the case, the
President declared the notice of objection ill-founded in the same
decision.
On 1 April 1996 the applicant, submitting that new facts and/or
circumstances had occurred, filed a new request for asylum or,
alternatively, a residence permit for compelling reasons of a
humanitarian nature. She had obtained a medical certificate from a
doctor, working in the reception centre for asylum seekers where she
was staying, according to which she was suffering from a kind of post-
traumatic stress caused mainly by sexual abuse which she had undergone
in the country of origin. With her new request the applicant also
submitted an original procès-verbal of the Registry of the Kinshasa
Regional Court, stating that on 8 December 1994 the applicant's movable
and immovable property had been seized.
The State Secretary for Justice declared the request for asylum
inadmissible on 16 April 1996, holding that no new facts and
circumstances had been established which justified such a renewed
request. The medical certificate was not found to add anything to the
applicant's account as she had already stated at the time of her first
request that she had been raped. The State Secretary further considered
that the document concerning the seizure of the applicant's property
did also not justify a renewed request.
The State Secretary also rejected the applicant's request for a
residence permit for compelling reasons of a humanitarian nature. It
was, moreover, decided that any notice of objection or request for an
interim measure to be filed by the applicant would not be granted
suspensive effect.
The applicant was taken into detention pending her expulsion on
16 April 1996. On the same date she lodged a notice of objection with
the State Secretary and requested an interim measure from the President
of the Regional Court of The Hague. In her further memorial of
6 May 1996, the applicant informed the President that she had developed
a stable relationship with an Angolan national who was in possession
of a residence permit in the Netherlands and that they were expecting
a child. She alleged that her expulsion from the Netherlands would
constitute a violation of, inter alia, Articles 3 and 8 of the
Convention. It appears that these proceedings are currently still
pending.
Following the application of Rule 36 by the Commission on
16 April 1996, the applicant was released from detention.
On 7 May 1996 the State Secretary granted a residence permit for
compelling reasons of a humanitarian nature to an Iraqi woman who had
stated that she had not been politically active but that she had been
raped by soldiers in her country of origin.
In support of her application the applicant has submitted an
undated document entitled "warrant of arrest" which states that a
complaint has been filed against the applicant as she is alleged to
have insulted the national emblem and to have endangered the security
of the State. According to the Government this document is not
authentic since it contains a wording which has not been used in
official documents since 1990.
The applicant has also submitted a document entitled "death
certificate", which is dated 13 December 1994 and is signed by a
forensic doctor. It states that Mr. M.B. has died in a hospital on
10 December 1994.
B. Relevant domestic law and practice
According to Section 11 para. 5 of the Aliens Act
(Vreemdelingenwet) a residence permit may be refused on grounds of
public interest. In general, an application for a residence permit in
the Netherlands is granted only if the foreigner's presence serves an
essential national interest or if there are compelling reasons of a
humanitarian nature.
If an appeal is filed with the Regional Court against the
decision not to refrain from expulsion pending, inter alia, the notice
of objection, the Regional Court will insofar as possible also decide
on the rejection of the request for entry to the Netherlands (Section
33b Aliens Act).
Pursuant to Section 15b para. 1 sub (b) of the Aliens Act, a
request for admittance as a refugee will be rejected as being
inadmissible if the foreigner has previously requested admittance on
the same grounds and the decision rejecting this earlier request has
become final.
As regards the assessment of asylum applications made by Zairean
nationals in the Netherlands, the Legal Uniformity Division
(Rechtseenheidskamer) of the Regional Court of The Hague held in a
normative judgment of 3 November 1994 that the risk for a Zairean
national of being apprehended and held in detention upon his return was
greater if he had already been detained before and if he was therefore
known to the authorities. For those Zairean nationals entering the
country who had previously been exposed to inhuman treatment as
referred to in Article 3 of the Convention, the risk that, when
screened, they might again be arrested, detained and subjected to
inhuman treatment - which, according to the Legal Uniformity Division,
was not inconceivable, on the basis of the available information on
conditions in Zairean jails - made their expulsion and return to Zaire
unacceptable. The Legal Uniformity Division concluded that asylum
seekers who could demonstrate sufficiently convincingly that they
belonged to this group should therefore be granted a residence permit
for compelling reasons of a humanitarian nature (Nieuwsbrief Asiel- en
Vluchtelingenrecht 1994, 60).
Where the Legal Uniformity Division speaks of detention, the
reference is to a registered detention. A detention is assumed to have
been registered only when it has lasted for a substantial period of
time.
The Aliens Circular (Vreemdelingencirculaire) contains the
requirements (concerning, inter alia, income and housing) which have
to be fulfilled by the partner of a foreigner wishing to obtain a
residence permit enabling him or her to remain with this partner in the
Netherlands.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
the Netherlands authorities, by expelling her to Zaire, would expose
her to a serious risk of being subjected to torture or to inhuman or
degrading treatment.
She also complains of discriminatory treatment contrary to
Article 14 of the Convention in that an Iraqi woman who, like the
applicant, had been sexually abused by soldiers in her country of
origin had been granted a residence permit in the Netherlands.
The applicant finally argues that her expulsion would amount to
an interference with her right to respect for her private and family
life which cannot be justified under para. 2 of this provision. In this
respect she submits that she has a relationship with a man in the
Netherlands and that they are expecting a child.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced and registered on 16 April 1996.
The Commission decided on 16 April 1996 to apply Rule 36 of the
Commission's Rules of Procedure until the end of its next session and
the application was subsequently communicated to the Government,
inviting them to submit their observations on the admissibility and
merits of the application.
The completed application form was submitted on 31 May 1996.
Since the applicant raised her complaints under Articles 8 and 14 of
the Convention for the first time in the application form, the
Government were invited to submit their observations on the
admissibility and merits of this part of the application as well.
The Commission decided to prolong the application of Rule 36 on
4 July and 12 September 1996.
The Government's observations concerning the complaint under
Article 3 were submitted on 25 June 1996 and their observations as
regards the other complaints on 28 August 1996. The applicant replied
on 27 August and 3 October 1996.
THE LAW
1. The applicant complains that her expulsion to Zaire would amount
to inhuman or degrading treatment. She invokes Article 3 (Art. 3) of
the Convention, which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government submit that the applicant was not a member of any
political party and did not engage in any political activities against
the authorities of her country of origin. In their view, the
applicant's conflict with General E.B. should be regarded as one of a
purely personal nature and the facts of the case do not give grounds
for supposing that the applicant has personally come to the notice of
the regime to the extent that she is liable to be apprehended on her
return to Zaire.
The Government are further convinced that, on the basis of the
detention which the applicant claims to have suffered, she cannot be
classified as belonging to the high risk groups which qualify for a
residence permit for compelling reasons of a humanitarian nature
pursuant to the judgment of the Legal Uniformity Division of 3 November
1995.
As regards the documents submitted by the applicant, the
Government find that the medical certificate does not provide a
separate indication that the inhuman and degrading treatment which the
applicant claims to have been exposed has been inflicted by the Zairean
regime or at its instigation, nor that she would again be subjected to
such treatment on her return. Also, the medical certificate contains
no indication to the effect that the applicant is medically unfit to
return to Zaire. As regards the document relating to the seizure of the
applicant's property, the Government submit that this document does not
indicate whether this seizure was connected to the alleged reasons for
her flight.
The Government further raise doubt about the applicant being in
the possession of a warrant for her arrest which is not addressed to
her but to the authorities. In addition, they submit that this document
contains a wording which has not been in use in official documents
since 1990.
Finally, the Government are of the opinion that the applicant
could invoke the protection of the Zairean authorities in the unlikely
event that she would once again be threatened by General E.B. Moreover,
they assume that the applicant will be able to settle in a part of
Zaire which is outside the reach of the General.
The applicant submits that she does belong to one of the high
risk groups referred to by the Legal Uniformity Division. In this
respect she points out that as she has been detained for a substantial
period of time, her detention must be considered as a registered
detention. She further argues that also Zaireans who have not been
previously detained are arrested upon their return to Zaire. In any
event, the sole fact that she was raped in Zaire should be sufficient
to make her eligible for a residence permit for compelling reasons of
a humanitarian nature.
The applicant denies that she would be able to settle elsewhere
in Zaire or, in view of the fact that General E.B. belongs to the
military of the current regime, to invoke the protection of the Zairean
authorities. According to the applicant, it appears without a doubt
from the arrest warrant which she has submitted that her problems are
also with the Zairean authorities and not of a purely personal nature.
The applicant does not exclude that friends or relatives of hers have
had to resort to bribery in order to obtain the arrest warrant, but
this, in her opinion, does not detract from the validity of its
contents. Furthermore, even assuming that the wording used in the
document is not according to current usage, this does not render the
document worthless.
No relevance should, moreover, be attached to the fact that the
death certificate concerning the applicant's fiancé does not state the
cause of death. The applicant submits that there is no reason to doubt
the contents of the certificate and, in any event, the date of her
fiancé's death corresponds to her account of the facts.
The Commission recalls in the first place that Contracting States
have the right, as a matter of well-established international law and
subject to their treaty obligations including those under Article 3
(Art. 3), to control the entry, residence and expulsion of aliens (cf.
Eur. Court HR., Vilvarajah and Others v. the United Kingdom judgment
of 30 October 1991, Series A no. 215, p. 34, para. 102). Furthermore,
it must be noted that the right to political asylum is not contained
in either the Convention or its Protocols. However, the decision of a
Contracting State to expel or extradite a person may give rise to an
issue under Article 3 (Art. 3) of the Convention, and hence engage the
responsibility of that State under the Convention, where substantial
grounds have been shown for believing that the person concerned faces
a real risk of being subjected to torture or to inhuman or degrading
treatment or punishment in the country to which he or she is to be
returned (ibid., p. 34, paras. 102-103; and Cruz Varas and Others v.
Sweden judgment of 20 March 1991, Series A no. 201, p. 28, para. 69).
The Commission has examined the applicant's submissions and the
documents in support of her application.
As regards the particular circumstances of the present case, the
Commission notes that the applicant alleges to have been detained and
raped in Zaire because she has refused to marry General E.B. It is her
contention that she will again be exposed to inhuman and degrading
treatment if she is returned to that country. However, the Commission
also notes that the applicant has never been involved in any kind of
political activities. The Commission considers that the applicant has
failed to substantiate her allegation that the authorities will arrest
and detain her on her return to Zaire for reasons connected with her
refusal to marry General E.B. or for any other reason.
It is true that the applicant has submitted a document said to
be a warrant for her arrest in which she is accused of having insulted
the national emblem and of having endangered the security of the State.
However, the Commission cannot accept the applicant's contention that
the use in the documents of outdated wording does not detract from its
validity. In the Commission's opinion no evidential weight can be
attached to a document drawn up in a form which has not been in use
since 1990. In addition, it appears rather peculiar that this document
is undated.
The Commission observes, furthermore, that the applicant has not
substantiated her rebuttal of the Government's submission that she
would be able to settle in a part of Zaire which is outside the reach
of the General.
Finally, the Commission considers that it cannot be said, as the
applicant appears to allege, that her expulsion to Zaire would in
itself constitute inhuman or degrading treatment in view of the fact
that she was raped in that country. Without wishing to minimise in any
way such a traumatic experience or its aftermath, the Commission points
out, however, that in order to determine whether or not an expulsion
would be contrary to Article 3 (Art. 3) of the Convention, it is
primarily called upon to assess the risk of ill-treatment which the
applicant runs after being expelled. It has not been submitted in this
respect that the health care available in Zaire is deficient to the
extent that the applicant's expulsion to that country would cause her
a severe level of physical and mental suffering such as to constitute
inhuman treatment within the meaning of Article 3 (Art. 3).
While recalling that a mere possibility of ill-treatment is not
in itself sufficient to give rise to a breach of Article 3 (Art. 3)
(cf. Vilvarajah and Others v. the United Kingdom judgment, loc. cit.,
p. 37, para. 111), the Commission finds that in the present case no
substantial grounds have been established for believing that the
applicant would be exposed to a real risk of being subjected to
treatment contrary to this provision if returned to Zaire.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. In conjunction with her complaint under Article 3 (Art. 3) , the
applicant also complains of discriminatory treatment contrary to
Article 14 (Art. 14) of the Convention in that an Iraqi woman who, like
the applicant, had been sexually abused by soldiers in her country of
origin has been granted a residence permit in the Netherlands.
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Government argue that requests for residence permits for
compelling reasons of a humanitarian nature are judged on the merits
of each individual case. The decision to which the applicant refers
concerns a woman from a different country, with a different religious
background, and one in which minor children were involved. In their
opinion, therefore, this is not a matter of similar cases receiving
unequal treatment.
The Commission recalls that, according to the Convention organs,
Article 14 (Art. 14) provides protection against discrimination for
individuals placed in comparable situations.
The Commission reiterates that for the purposes of the
examination of a complaint under Article 3 (Art. 3) of the Convention,
it is necessary to assess the risk of ill-treatment which a person runs
after being expelled. Accordingly, this risk will vary pursuant to the
particular circumstances of each case.
Having regard to the undisputed facts that the case with which
the applicant seeks to compare her own concerns a different country of
origin and a different religious background, the Commission considers
that the applicant has based her allegation of discrimination on a
comparison of two factual situations which prove to be different.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains that her expulsion would violate
her right to respect for her private and family life. She submits that
she has had a stable relationship for a considerable length of time
with a person who has a residence permit in the Netherlands and that
she is expecting his child. She invokes Article 8 (Art. 8) of the
Convention, which, insofar as relevant, provides as follows:
"1. Everyone has the right to respect for his private and
family life ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Government submit that the applicant has failed to raise this
complaint, which in itself constitutes sufficient grounds for the
applicant to submit a fresh request for admission to the Netherlands,
in the domestic proceedings.
The Commission observes that the applicant has raised this
complaint in her further memorial to the President of the Regional
Court of The Hague in the proceedings concerning her request for an
interim measure of 16 April 1996. However, these proceedings are
currently still pending and the Netherlands authorities can thus not
be considered to have had the opportunity to respond to this allegation
or to remedy the situation, even assuming that the complaint under
Article 8 (Art. 8) can be addressed in these proceedings. It further
does not appear that the applicant has lodged a separate request for
admission to the Netherlands to remain with her partner.
The Commission considers that in these circumstances the
applicant cannot be said to have complied with the requirement of
exhaustion of domestic remedies contained in Article 26 (Art. 26) of
the Convention.
It follows that this part of the application is inadmissible
under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy