CASE OF MAWAKA v. THE NETHERLANDS
No violation of Art. 3 (in case of expulsion to the Democratic Republic of the Congo);No violation of Art. 8 (in case of expulsion to the Democratic Republic of the Congo)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
5. The applicant, who is a national of the DRC, was born in 1969 and lives in Rotterdam. 6. From September 1992 until January 1994 the applicant resided in Belgium, at which point he returned to Zaire (as the DRC was then called) after having obtained a laissez-passer from the Zairean Embassy in Brussels. 7. In 1994 the applicant was working in Kinshasa, the DRC, as the personal secretary of a prominent member of the opposition party Union pour la Démocratie et le Progrès Social (“UDPS”), who was also the editor of the opposition newspaper NSEMO. In October 1994 the applicant was contacted by unknown men who asked him to help assassinate his boss. The applicant refused, but a few weeks later his boss disappeared and was then found unconscious and badly beaten. He died a few days later in a local hospital. On 20 November 1994 the applicant was arrested and put in prison; he was never shown an arrest warrant. On 25 November 1994 the applicant was transferred to the central Makala prison in Kinshasa. During the interrogations he was told he had been arrested because he had refused to help assassinate his boss. He was also told he would not live to see 1995. The applicant was beaten during the interrogation. On 26 December 1994 the applicant managed to escape with the assistance of a guard who happened to be from the same tribe as the applicant. He stayed in the guard's house while travel documents were arranged and on 6 January 1995 the applicant flew to Belgium. After arriving in Brussels, the applicant was driven to the Netherlands where he requested asylum on 7 January 1995. 8. The applicant was granted a residence permit for the purposes of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd) on 2 July 1996 since there were sufficient grounds to believe that he would be persecuted should he return to the DRC. 9. On 27 July 1999 the applicant filed a request for naturalisation. On the basis of this request, the applicant was interviewed by an official from the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) on 13 October 2000. During the interview the applicant was confronted with the fact that, on 2 January 1997, he had been convicted and sentenced to two years' imprisonment in Belgium for participation in a criminal organisation and possession of cocaine, by the Brussels tribunal de première instance. 10. On 4 October 1999 the applicant married Ms M. with whom he had already had a son who was born on 22 May 1999. Ms M., also a national of the DRC, requested a residence permit for the purpose of staying with her spouse (verblijfsvergunning voor verblijf bij echtgenoot) and the permit was granted to her. 11. By letter of 23 November 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie) notified the applicant of her intention (voornemen) to revoke the applicant's residence permit pursuant to article 35 of the Aliens Act (Vreemdelingenwet), which allows the withdrawal of a residence permit on the basis of a criminal conviction of a certain severity. 12. In her letter the Deputy Minister noted that the applicant had enjoyed legal residence in the Netherlands since 2 July 1996 and that his conviction in Belgium dated back to 2 January 1997. She further concluded that, according to Dutch sentencing guidelines, a sentence of 10 months' imprisonment would have been imposed on the applicant had the offence been committed in the Netherlands. The Deputy Minister concluded accordingly that the length of the sentence, compared to the length of time the applicant had been living in the Netherlands, justified revoking the applicant's residence permit. Considering that the applicant had been granted asylum in the Netherlands, the Deputy Minister held that a forced return of the applicant would have to be in compliance with the non-refoulement principle contained in the UN Refugee Convention. In this regard the Deputy Minister considered that an individual report (ambtsbericht) from the Ministry of Foreign Affairs explained that there had already been some doubts, given certain inconsistencies in the applicant's story, when he had applied for asylum and that a new individual report had confirmed these doubts created by the inconsistencies. Moreover, since the applicant had left the DRC, regime changes had taken place in that country in 1997 and 2001. The Deputy Minister considered that since the applicant had not shown that he had anything to fear from the new regime, he had not established that he would still face a real and personal risk of persecution in his country of origin. Finally, the Deputy Minister considered that revoking the applicant's residence permit did not constitute an interference with the applicant's right to respect for family life under the Convention since the interests of public order outweighed the interests of the applicant. Furthermore, it had become known that the applicant and his wife had separated, that he had not had any contact with her or their child for some weeks and that there were no indications that he was actively participating in the upbringing of their son. In any event, since the applicant, his wife and their son all had Congolese nationality, there were no objective obstacles for them to continue their family life in the DRC. 13. In his written comments (zienswijze) of 19 December 2001, the applicant disputed the finding that he would have been sentenced to 10 months' imprisonment in the Netherlands for an offence similar to the one he had committed in Belgium. The applicant argued that there was no set indication of the length of a sentence but that the individual circumstances of the person concerned would always be taken into consideration. It was therefore not possible to determine what kind of sentence he would have received had he been tried by a Dutch court. The applicant further submitted that the grounds on which he had been granted his residence permit were still valid and that the reports used by the Deputy Minister in no way detracted from that. A forced return to the DRC would therefore entail a violation of the Convention. The applicant also submitted that he could exercise his family life only in the Netherlands, since his wife and child were living there. 14. On 4 July 2002 the applicant appeared before an official board of inquiry (ambtelijke commissie) and on 24 July 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor to the Deputy Minister of Justice – hereafter “the Minister”) issued a decision to revoke the applicant's residence permit. The Minister considered that the estimate of a 10-month sentence in the Netherlands for the Belgian offence was indeed correct, as an advisory letter from the prosecutor at the Regional Court of 's-Hertogenbosch (“Den Bosch”) stated that a 10-month sentence would have represented the minimum length of sentence the prosecutor could have sought based on the facts available to him. The Minister further noted that the applicant's statement regarding his arrest in Belgium before the official board of inquiry differed from the original statement he had given during the interviews that were conducted pursuant to his request for naturalisation on 13 October 2000. From these new statements the Minister concluded that the applicant had been fully aware of his actions when transporting the drugs across the border between the Netherlands and Belgium. The Minister further noted that although the applicant had stated during the hearing before the board that he had had no further contact with judicial authorities, he had in fact been convicted of a number of insurance offences as well as violations of the 1994 Road Traffic Act (Wegenverkeerswet 1994). Concerning the risk of persecution that the applicant would face upon his return to the DRC, the Minister considered that the reports of the Ministry of Foreign Affairs did disclose discrepancies in the applicant's story. The Minister further considered that it had been concluded in the intention to revoke the applicant's residence permit that the situation in the DRC had changed since the applicant had last been in that country and that he had failed to establish that he would still be at risk of persecution there. A forced return to the DRC would thus not be in violation of the UN Refugee Convention, nor would it be contrary to Article 3 of the Convention. Moreover, the applicant had been convicted of a drugs-related offence. For these reasons the Minister considered that the interests of the State in protecting public order outweighed the interests of the applicant. Finally, the Minister noted that the applicant and his wife (with whom he had been reconciled by then) and child all had Congolese nationality and that there were no objective obstacles for them to continue their family life in the DRC. 15. By submissions of 14 August 2002 and 3 September 2003 the applicant appealed against the decision of the Minister to the Regional Court of The Hague. On 26 February 2004 the Regional Court rejected the applicant's appeal. The Regional Court considered that the Minister had been correct in applying article 35 of the Aliens Act and that the estimated sentence of 10 months' imprisonment, had the offence been committed in the Netherlands, was reasonable as well. The Regional Court further determined that the Minister had been correct in taking notice of the reports from the Ministry of Foreign Affairs in finding that the applicant's original story contained inconsistencies. The resulting lack of credibility of the applicant's story was sufficient to show that the applicant would not face a real, personal risk of treatment contrary to Article 3 upon his return to the DRC. The Minister had therefore been entitled to attach more weight to the protection of public order in relation to the interests of the applicant. The Regional Court finally considered that the applicant had failed to establish a possible violation of Article 8. 16. On 22 March 2004 the applicant appealed against the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State – “the Division”) on essentially the same grounds. The applicant added, however, that according to a letter dated 24 June 1998 from the prosecutor in Den Bosch (which the Minister had neglected to add to the case file and for which the Regional Court had reopened the proceedings so that it could be introduced), the prosecutor in Den Bosch did not have possession of the complete Belgian case file and had thus only been able to estimate the length of the sentence that could be imposed. Furthermore, a judicial sentencing document submitted in the proceedings showed that a similar offence in the Netherlands would attract a custodial sentence of only 8 months and 28 days. A sentence of that duration would not engage the consequences of article 35 of the Aliens Act, meaning that the applicant's residence permit would not be in jeopardy. 17. On 9 June 2004 the Division dismissed the applicant's appeal. The Division considered that the Minister had correctly applied the provisions of article 35 of the Aliens Act in determining the length of imprisonment had the offence been committed in the Netherlands, based on the information obtained from the prosecutor in Den Bosch. In particular, the Division considered that the indication of an 8 month and 28 day sentence applied solely in relation to the possession of cocaine and did not include the charge of participation in a criminal organisation. The remaining grounds of appeal submitted by the applicant were dismissed summarily as not raising any points of law warranting determination. 18. The applicant currently lives in the Netherlands and has since divorced his wife but continues to visit her and their child regularly. 19. After the introduction of the application the applicant informed the Court by a letter of 23 April 2008 that he had spent a number of days in an aliens' detention centre in France after being apprehended there without a valid residence permit. 20. The applicant's original asylum application was submitted under article 15 § 1 of the Aliens Act 1965 (Vreemdelingenwet), pursuant to which aliens coming from a country where they had a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, could be admitted by the Minister of Justice as refugees. 21. Since 1 April 2001 the admission, residence and expulsion of aliens have been governed by the Aliens Act 2000 (Vreemdelingenwet 2000), the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). The General Administrative Law Act (Algemene Wet Bestuursrecht) is also applicable, except where otherwise stipulated. 22. Pursuant to article 115 § 7 of the Aliens Act 2000, an asylum-based right of abode that was valid at the time that Act entered into force automatically entails a permanent residence permit under that Act. 23. Under the policy laid down in article 35 § 1 (b) of the Aliens Act 2000 in conjunction with article 3.86 § 1 (c) of the Aliens Decree 2000, an alien who has been given a custodial sentence (at least part of which was not suspended) by a Dutch or foreign court in a judgment that has become final and conclusive, for intentionally committing an offence punishable by a custodial sentence of three years or more, could be refused permission for continued residence in the country. Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands, the more serious the offence has to be before it may justify refusing continued residence; the authorities thus apply a “sliding scale” (glijdende schaal). The seriousness of an offence is determined on the basis of the sentence attached to it. To determine whether an alien may be refused permission for continued residence, the length of the sentence imposed is compared to the length of time that the alien had been living in the Netherlands when he or she committed the offence. 24. The revocation of a residence permit is also assessed in the light of the principle of non-refoulement and whether returning the alien to his country of origin would be in violation of Article 3 of the Convention. 25. The respondent Government's policy on asylum seekers from the DRC is devised by the Deputy Minister of Justice (Staatssecretaris van Justitie) and, was temporarily – between July 2002 and December 2006 – devised by the Minister for Immigration and Integration. It is based on official country reports published by the Minister of Foreign Affairs and external sources. 26. At the time of the applicant's initial request for asylum, his application was assessed on the basis of the official country reports of 2 June 1992, 14 December 1993, 8 March 1994 and 14 September 1994 in conjunction with the US State Department's Country Reports on Human Rights Practices – Democratic Republic of Congo (formerly Zaire) of 1994 and 1995. 27. In the period when the applicant's residence permit was revoked, applications from the DRC were assessed on the basis of the Netherlands official country report of 8 November 2000. Since then further reports have been issued by the Netherlands Minister of Foreign Affairs in 2005, 2006, 2007, 2008 and the latest in January 2010. 28. The Netherlands authorities operate on the basis that the human rights situation in the DRC remains a cause for concern, but that it is not such that every asylum seeker should automatically be deemed a refugee within the meaning of the 1951 Convention relating to the Status of Refugees. The latest official country report of January 2010 classifies the general security situation as such: “During the entire reporting period the Congolese authorities were unable to control their territory in large parts of the country, as well as to ensure the safety of citizens and maintain their monopoly on the use of force. In both the North and South Kivu province the security situation remained under pressure due to military operations of the Congolese army against the FDLR, after which the FDLR resorted to large scale retaliations. Other rebel factions, including several Mai-Mai groups, caused a large decrease in security. In the Haut- en Bas-Uélé districts in the Orientale province there was an increase in attacks by the LRA despite military actions by the FARDC. In the district of Ituri militias of the FRPI and FPJC fought with the FARDC and launched assaults on villages. In all areas where FARDC units were stationed and active the security situation was such that soldiers displayed severe misconduct towards the civilian population. The former rebel faction CNDP, which had recently integrated into the FARDC, played a key role in these infractions. At the end of the reporting period the security situation in the Equateur province deteriorated because of violent confrontations between a number of ethnic groups who later turned against the FARDC. In the remaining parts of the country the security situation remained stable, although some security incidents occurred in the Bas-Congo province.” 29. The report describes the overall situation in the DRC as follows: “Efforts to stabilize the eastern region of the Democratic Republic of the Congo witnessed significant setbacks during the reporting period. The processes relating to the Goma statements of commitment (actes d'engagement) and the Nairobi communiqué stalled, and large-scale hostilities between the Armed Forces of the Democratic Republic of the Congo (FARDC) and the Congrès national pour la défense du peuple (CNDP), led by Laurent Nkunda, resumed on 28 August. The fighting, which spread throughout North Kivu, has further exacerbated the humanitarian crisis, displacing over 250,000 people and bringing the number of internally displaced persons in the eastern part of the country to more than 1.35 million. Exchanges of fire across the border between Rwanda and the Democratic Republic of the Congo, as well as a resurgence of armed groups in Ituri and a resumption of atrocities committed by the Lord's Resistance Army (LRA), further compounded the crisis in the area. While the security situation remained stable elsewhere in the Democratic Republic of the Congo, little progress was achieved in the key peace consolidation tasks, including the delivery of basic services and the extension of State authority. Preparations for local elections continued, but key legislation, without which the necessary preparatory work cannot proceed, has yet to be adopted, risking further delays in the conduct of the elections.” 30. Concerning freedom of speech in the DRC and the treatment of UDPS supporters, the report stated: “Generally individuals could privately criticize the government, its officials, and private citizens without being subject to official reprisals. However, on February 8, ANR agents in Goma arbitrarily arrested and detained a member of the Union for Democracy and Social Progress/Goma for discussing politics with local citizens. The victim, who was released on February 13 after the UNJHRO intervened, claimed that he was subjected to cruel, inhumane, and degrading treatment while in detention. No action had been taken against the responsible ANR agents by year's end.” 31. Concerning political rights and parties, the report stated: “The DRC is not an electoral democracy. The 2006 elections were a significant improvement over previous elections, but serious problems remained. The opposition Union for Social Democracy and Progress (UDPS) party did not participate as a result of the party leader's call for a boycott of the recent constitutional referendum. International observers noted voter registration irregularities and corruption. The campaign period included clashes between opposition militants and government forces as well as an attempt on opposition leader Jean-Pierre Bemba's life. The 2007 Senate elections were similarly plagued by political corruption, with allegations of vote buying. Local elections initially scheduled for 2008 were delayed until at least 2009.” 32. Regarding the treatment of failed asylum-seekers upon return to the DRC, the report noted: “34.02 The UNHCR response on the ill-treatment of failed asylum seekers returned to the Democratic Republic of Congo noted: 'The Congolese human rights NGO 'Voix des Sans Voix' informed the office that rejected asylum-seekers are received upon arrival at the airport by agents of DGM, who question them why they left and applied for asylum. The NGO had an office at the airport and are closely monitoring the situation. They mentioned that there were many failed asylum-seekers who are sent back by western European countries, but they are not aware of any of these persons detained and/or tortured upon return. They reported that some of the failed asylum-seekers had to pay some money to the police (5 to 10 USD).' 34.03 UNHCR's response also recorded that the International Office for Migration (IOM) Kinshasa, the Mission of the United Nations in the Democratic Republic of Congo (MONUC), the Association Africaine de Defense des Droits de l'Homme (ASADOH) and UNHCR staff who were '... at times present at the airport [in Kinshasa] ...' did not hold the information to confirm the existence of instances of the detention, abuse or torture of failed asylum-seekers. The UNHCR response concluded 'With the limited information available to UNHCR, it does not have evidence that there is a systematic abuse, including detention and mistreatment, of failed asylum-seekers returned to the DRC through Kinshasa airport.' 34.04 An e-mail from the British Embassy in Kinshasa via the FCO dated 11 October 2007 stated that at a meeting with a Policy Officer of the Asylum and Migration Affairs Division of the Netherlands MFA, the officer told them that he had spent a week talking to NGOs, international organisations and Embassies, he said that MONUC, UNHCR, IOM and all the NGOs he spoke to said that, while there were obviously serious human rights issues in DRC, returned failed asylum seekers were not targeted, nor were they singled out as a particular group by the authorities. All of his interlocutors had said that the stories of abuse that they had heard had all come from Europe, and that their investigations had shown the allegations to be either false, or doubtful due to lack of evidence.”