A AND B v. THE NETHERLANDS
Inadmissible
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
1. The applicants, Mr A and Ms B, are a married couple and currently living in the Netherlands. They are Mongolian nationals and were born in 1980 and 1978, respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Ms J. Bravo Mougán, a lawyer practising in Amsterdam. 2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 May 2009 the applicants and their daughter, born in 2001, fled Mongolia. On 11 May 2009 they entered the Netherlands and applied for asylum, claiming to fear persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). The next month a second child was born to the applicants. 5. On 5 August 2009 the immigration authorities held a first interview (eerste gehoor) with each applicant about their identity, nationality and travel itinerary. A written record of each interview was drawn up. The applicants, who were assisted by a lawyer, were given the opportunity to submit corrections and additions, which they did on 6 August 2009. 6. On 7 August 2009, the immigration authorities held a further interview (nader gehoor) with each applicant about their reasons for seeking asylum. A written record of each interview was drawn up and on 21 September 2009 a lawyer submitted corrections and additions on the applicants’ behalf. 7. In his asylum statement, the first applicant declared that he was a former Buddhist monk (“lhama”). His only relative was a foster parent who had died in 1998. After his marriage to the second applicant he had resigned as a monk and started to work as a spiritual counsellor. Among his clients were Mr X, a prominent political and government leader, Mr Y, a former business associate of X, and Mr Z, a judge. By the end of June 2008, the first applicant had received a 3-4 page letter from Y who had been placed in pre-trial detention. In this letter Y wrote that he was innocent and wrongly imprisoned and that he had been falsely accused by X. The letter further contained incriminating information about X who was allegedly involved in corruption. The first applicant had not discussed this information with anyone. Soon after, the first applicant had received several threatening telephone calls from accomplices of X. They told him that they knew that he had received the letter, that he knew too much and that he should keep his mouth shut. They also ordered him to give them his clients’ records. The second applicant also received threatening calls. On 10 July 2008 the first applicant learned that Y had died in prison. 8. On 2 or 3 August 2008 the first applicant, whilst walking upstairs to his apartment, had been assaulted by two unknown men in the stairwell of the building. The two men had demanded the letter and the records the first applicant had kept on his clients. When a neighbour had appeared, the two men had run off. As requested by Y, the first applicant had taken the letter to Z who had advised him not to go to the police as X had more power than the police. Being a judge, Z. would deal with the matter himself. According to the first applicant, Y had written the letter to the first applicant and not directly to Z because he had known the first applicant very well and had trusted him. 9. As the applicants had no longer felt safe at home, the first applicant had asked one of his other clients to shelter him and his family. This client had done so as from September 2008 and sheltered the applicants in a town near to Ulaanbaatar. Although the first applicant had changed his telephone number, he continued to receive threatening phone calls. 10. On 26 October 2008, whilst travelling for business by car to Dorngovi, the first applicant had a car accident. One of the front wheels of his car had broken off, causing the car to roll over twice. His co-driver had been thrown out of the car and the applicant, who had been driving the car, had lost consciousness. The traffic police drew up a report and left. A friend took them and the car back to Ulaanbaatar. When the first applicant reported the accident to the police as requested by the latter, he was told that the accident had been caused by him driving too fast. According to the first applicant this was untrue as he had driven at a normal speed. The first applicant had taken the police report to Z who – like the first applicant – had found it rather odd and would look into it. 11. On 1 February 2009 Z’s wife had called the first applicant and told him that Z had suddenly died of food poisoning. The first applicant had not believed this and suspected murder. Now fearing for his family and himself, he had started to make preparations to leave Mongolia which he and his family had done on 1 May 2009. With the aid of a “travel agent” to whom they had given their identity documents the applicant, his wife and their daughter had travelled first by train to Moscow and later by car to the Netherlands. This travel agent had not returned their identity documents. 12. The asylum statement of the second applicant, who had also applied for asylum on behalf of the couple’s two young children, was based on the asylum statement given by the first applicant. She also stated that her mother and brother were living in Mongolia. Her father had died in 2008. 13. On 1 December 2009 the Deputy Minister of Justice (Staatssecretaris van Justitie) issued a notice of her intention (voornemen) to reject the first applicant’s asylum application. On 2 December 2009 the Deputy Minister issued the same notice to the second applicant. 14. The Deputy Minister considered at the outset that the applicants’ failure to substantiate in a sufficient manner their stated identity, nationality and travel itinerary as well as their failure to give a detailed, coherent and verifiable account of their journey to the Netherlands cast doubt on the sincerity of their asylum claim and detracted from the credibility of their asylum statement. As to the question whether the applicants’ asylum statement should nevertheless be accepted as positively persuasive (positieve overtuigingskracht), the Deputy Minister found that the events as described by the first applicant were credible, i.e. the receipt of the letter, the threatening telephone calls and having been assaulted once in the stairwell of the building where he used to live. Noting, inter alia, that the name of X had never been mentioned in the phone calls or by the men who had assaulted the first applicant, the Deputy Minister found that it could not be established that these acts were carried out by accomplices of X and in his name. The Deputy Minister further found that the applicants could and should have reported the threatening telephone calls and the assault in the stairwell to the Mongolian authorities and that it had not been demonstrated that these authorities would be incapable of providing protection. 15. On 23 December 2009, assisted by a lawyer, the applicants submitted written comments (zienswijze) on the notice of intent sent to both applicants. 16. On 21 January 2010, in two separate decisions and referring to the above notices, the Deputy Minister rejected the applicants’ asylum applications, finding that they had failed to dispel the doubts about the credibility of their asylum statement. The Deputy Minister maintained that the applicants had failed to substantiate their claim that X was corrupt. The fact that government corruption occurred in Mongolia did not mean that X was personally corrupt as well. The Deputy Minister also maintained that the applicants had failed to establish that X was responsible for the events described by them. These acts could equally have been carried out by accomplices of other powerful men. The Deputy Minister also did not find it demonstrated that the applicants would run a risk of treatment contrary to Article 3 of the Convention if they were expelled to Mongolia. 17. In its judgment of 13 January 2011 the Regional Court (rechtbank) of The Hague sitting in Assen accepted the applicants’ appeal, quashed the impugned decisions of 21 January 2010, and ordered a fresh determination of the applicants’ asylum claim. It accepted the Deputy Minister’s findings in respect of the absence of any identity documents and the failure to give a detailed, coherent and verifiable account of their journey to the Netherlands, as well as the Deputy Minister’s conclusion that it was not credible that the death of Y and Z and the first applicant’s car accident resulted from intentional acts instructed by X or committed in his name. However, the Deputy Minister had given insufficient reasons for finding that the applicants’ suspicion that there was a connection between X and the threatening telephone calls received by the applicants and the first applicant’s assault in the stairwell lacked positive persuasiveness as both the threats and the assault were connected to the letter which the applicant had received from Y. This was not altered by the fact that it did not appear from general sources that X was involved in corruption or other illegal practices, when taking into account X’s interest in keeping the content of the letter written by Y quiet given that – according to the official report (ambtsbericht) on Mongolia of January 2010 as compiled by the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) – the great discontent in the Mongolian population over the widespread poverty in the country and the corruption in government circles had probably worked to the advantage of X who had campaigned with promises of change and of combatting corruption and income inequality. 18. On 7 February 2011, the Minister for Immigration and Asylum (Minister voor Immigratie en Asiel), the successor to the Deputy Minister of Justice, filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), arguing essentially that it was for the Minister to assess the credibility of the facts submitted by an asylum-seeker and that the courts could only examine that assessment with due reticence (terughoudend). Referring to the Division’s case law, the Minister submitted that the Regional Court had overstepped its competence. Pursuant to the system of asylum proceedings, in appeal proceedings the Regional Court should only have determined whether the administrative authority concerned (i.e. the Minister) had exercised its administrative powers in a reasonable manner and whether this authority could reasonably have taken the impugned decision (marginale toetsing). In this case however, the Regional Court had made its own findings of fact, substituting them for the findings made by the Minister. 19. On 18 August 2011 the Administrative Jurisdiction Division accepted the Minister’s further appeal, quashed the impugned judgment of 13 January 2011 and rejected the applicants’ appeal. It held that, instead of examining whether the Minister could not reasonably have reached the conclusions as to the credibility of the applicants’ asylum statement, the Regional Court had wrongly drawn its own separate conclusions in relation to various parts of the asylum statement. It therefore quashed the judgment of the Regional Court and substituted it with its own decision on the appeal, holding that the Minister could reasonably have concluded that the applicants’ stories lacked positive persuasiveness. Accordingly, the applicants had not established that their removal to Mongolia would expose them to a real and personal risk of being subjected to treatment in violation of Article 3 of the Convention. No further appeal lay against this decision. 20. On 16 September 2013 the Government informed the Court that the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) were taking action for the applicants’ removal to Mongolia by presenting them to the Mongolian authorities. 21. On 22 February 2016 the President of the Section decided, under Rule 54 § 2 (c) of the Rules of Court, that the Government should be invited to submit further observations dealing specifically with aspects of the applicants’ effective removal to Mongolia. 22. In their reply of 15 March 2016, the Government informed the Court that the removal of rejected asylum-seekers to Mongolia is only possible when they hold a valid travel document. The Government further stated that they had applied for a laissez-passer on behalf of the applicants at the Embassy of Mongolia where the applicants had been presented in person in August 2015. The applications had been taken into consideration by the authorities of Mongolia. The Netherlands authorities are still awaiting the response and have been sending reminders to the Embassy of Mongolia once or twice every month, the most recent one having been sent on 14 March 2016. 23. In their reply of 30 March 2016, the applicants confirmed that they had been presented to the Mongolian authorities. They further stated that their nationality had been officially confirmed and that the request for a travel document (laissez-passer) was still pending. They could and would be removed to Mongolia as soon as these documents were issued. 24. 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 §§ 25-28, 25 September 2012).