CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juillet 2005

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text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both }     FORMER SECTION IV     CASE OF N. v. FINLAND     (Application no. 38885/02)     JUDGMENT     STRASBOURG     26 July 2005       FINAL     30/11/2005       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of N. v. Finland, The European Court of Human Rights (Former Section IV), sitting as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mrs   E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar , Having deliberated in private on 5 July 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 38885/02) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of the Democratic Republic of Congo (“the applicant”) on 31 October 2002. 2.     The applicant, who had been granted legal aid, was represented by Mr Thomas Bergman, a lawyer for the Refugee Advice Centre in Helsinki. The Finnish Government were represented by their Agent, Mr Arto Kosonen, Director, Ministry for Foreign Affairs. 3.     The applicant alleged that he would face inhuman treatment contrary to Article 3 of the Convention if deported to the Democratic Republic of Congo (“the DRC”). He further complained under Article 8 of the Convention that his deportation would violate his right to respect for his private and family life. 1.     The admissibility proceedings 4.     The application was allocated to the Former Section IV of the Court (Rule   52 §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     The President of the Chamber and subsequently the Chamber decided, on 5 and 12 November 2002 respectively, to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the applicant pending the Court’s decision. 6.     By a decision of 23 September 2003, the Court declared the application admissible. 2.     The proceedings on the merits 7.     Having considered the parties’ initial written submissions on the merits (Rule 59 § 1) the Court decided, on 3 February 2004, to pursue its examination by taking oral evidence in Finland. It appointed as its Delegates Judges Lech Garlicki and Elisabet Fura-Sandström. 8.     The fact-finding mission took place on 18-19 March 2004 in Helsinki. The Delegates were accompanied by the Registrar, Mr O’Boyle, and several members of the Registry. There appeared before the Court’s Delegation: (a)   for the Government     Mr A. Kosonen , Director of the Unit for Human Rights Courts and Conventions in the Ministry for Foreign Affairs, Agent Ms   Annikki Vanamo-Alho , D irector of the Refugee and Asylum Affairs Unit in the Ministry of the Interior, Mr   Tuomas Helinko , s enior adviser in the Refugee and Asylum Affairs Unit of the Ministry of the Interior,   Ms   Päivi Rotola-Pukkila , Legal Officer in the Unit for Human Rights Courts and Conventions of the Ministry for Foreign Affairs; Ms   Virpi Koivu, official in the Unit for Public International Law, Ministry for Foreign Affairs, Advisers   (b) for the applicant Mr   Thomas Bergman, LL.M., of the Refugee Advice Centre, Counsel , Ms   Sari Sirva , Ms   Päivi Keskitalo , and Ms   Jenny Widén, lawyers at the Refugee Advice Centre, A dvisers   9.     The Court took testimony from the applicant, his common-law wife E., Mr Matti Heinonen and Ms K. K. 10.     Following the Court’s fact-finding mission the applicant and the Government each filed further observations on the merits. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other’s observations. 11.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1) but this case remained with the Chamber constituted within former Section IV. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 12.     The applicant, born in 1972, originates from the former Zaire (currently the DRC). He arrived in Finland on 20   July 1998 and immediately applied for asylum. A.   The applicant’s asylum interview in Finland 13.     On his arrival in Finland the applicant filed an asylum request written in French, stating that he had left the DRC 13 months ago; that he had been trained to join the presidential guards and had been working as an informant in Office D of the special force responsible for protecting the then President Mobutu ( Division Spéciale Présidentielle ; “the DSP”); that he had belonged to the President’s and the DSP Commander-in-Chief’s inner circle; that he had been arrested in Angola while in the possession of a DSP badge and a photograph of Mobutu; that his life was in danger on account of his position and his Ngbandi origin; and that Laurent-Désiré Kabila’s regime (who had seized the power in the DRC in May 1997) had put out a warrant of arrest on former DSP agents. The applicant named three high-ranking officers within the DSP whose grades he also indicated. 14.     According to the record of the asylum interview with the applicant on 22 July 1998, it was conducted with the assistance of a French interpreter. The applicant stated that he had been born on 2 December 1972 in Gbadolite in former Zaire; that he was a Christian of the Ngbandi tribe; that he had been a DSP agent by profession; that he had resided at Pavillon no. 22 at the presidential compound Camp Tshatshi in Kinshasa; that he was single; that his mother tongue was Lingala and that he also knew French, Kigongo and Swahili. He indicated the names of his parents and sister. He had gone to elementary and high school for a total of 12 years and had undergone a one-year training programme to become a garde civile . He had performed his military service in 1989-90, receiving the grade GT 2 (regional guard, class II). He also indicated his salary while working in the DSP. 15.     The applicant further stated that he had been an asylum seeker in the Netherlands from 9 August 1993 to 26 October 1995, when he had been deported. On his return he had been living at Camp Tshatshi together with the President’s nephew, a named general. He had had at his disposal two rooms, a living room, a shower and parking spaces for his two cars. He had also had a considerable amount of money at his disposal. 16.     Asked why he did not carry a passport on arriving in Finland, he had stated that it had remained with a (named) Commander in the President’s administration when the applicant had left the DRC. 17.     Asked to describe his departure from the DRC, the applicant stated that he had left Kinshasa by boat to go to the airport in Brazzaville (the Republic of Congo) on 17 May 1997. At the end of June 1997 he had continued by train to Point Noir and from there by boat to Cabinda in Angola. There he had been staying for three months in order to acquire an Angolan identity card; he had been living in a house owned by a local. He had then travelled to Luanda by plane; he had run into some difficulties as he had not been speaking Portuguese; he had been arrested but had been allowed to continue his journey after he had paid some money. He had stayed in Luanda in the Petragol neighbourhood for one month, following which he had been detained in the Viana prison for three months (in October 1997), the authorities having taken him for a soldier in Mobutu’s forces as he had been unable to speak Portuguese. During his detention a rifle had been used to hit him in the shoulder and he had been forced to dig graves. In 1998 he had been transferred to an army prison in Bengela, where he had spent a further five months. Prisoners had been forced to take part in armed fighting but the applicant had managed to avoid this due to his injured and infected shoulder. The fighting had occurred at the diamond mines where Angolan rebels (the Savimbi guerrilla) had been fighting President José Eduardo do Santos’s troops. 18.     After a fellow detainee, Antonio, had promised to help him out of prison the applicant had arrived in the Namibian border town Santa Clare on 14-15 July 1998. With the assistance of a “merchant” he had left for South Africa through Namibia on 16-17 July, travelling under a cover on a truck. From Johannesburg he had departed for Amsterdam on a KLM flight on 19   July. The airport staff had helped him embark on the plane even though he had possessed no documents. From Amsterdam he had continued on a KLM flight to Helsinki on 20 July. Antonio had arranged for someone to explain to the applicant how to get to Helsinki. In Amsterdam the applicant had been able to transfer to the plane for Helsinki simply by showing his boarding pass. 19.     As for his reasons for leaving the DRC in 1997, the applicant stated that when President Mobutu had fled and had been replaced by Laurent-Désiré Kabila, the latter’s regime had started killing all who had been working under Mobutu. Were the applicant to return to the DRC he too would be killed as a former DSP agent. In addition, he was of the Ngbandi tribe to which Mobutu also belonged. 20.     Asked how he had organised his trip the applicant stated that Antonio had paid USD 15,000 for the whole “package”. The applicant had possessed some money of his own as well as diamonds. Before leaving the DRC he had stolen diamonds from “the office of the Lebanese”; actually, it had not been a theft but “a question of saving a life”. The diamonds had belonged to Mobutu’s son; the applicant had sold them in Angola for USD 20,000, aided by a friend named Roberto. The applicant had not seen which country’s passport Antonio had organised for him to use. 21.     Asked about his political activities the applicant stated having worked as a secret agent for Mobutu’s army from 1990 (in the office of the DSP and Office D of the Bureau d’Intelligence ). Under the cover of a civilian in the street he had been listening in on the opposition’s criticism of Mobutu and had denounced various individuals critical of the regime. In 1993 the (named) Commander of Office D had sent him to the Netherlands to denounce individuals criticising Mobutu. After he had reported their names to the Commander their families in Zaire had been apprehended. The applicant had travelled to the Netherlands on an Angolan passport under the name of Alexandre. 22.     Asked whether he had ever been convicted and sentenced, formally wanted by the authorities or tortured or threatened, the applicant answered in the negative. B.   The refusal of asylum in the Netherlands 23.     Responding to a request for assistance from the Finnish authorities, the Dutch Ministry of Justice, in December 1998 confirmed – after having matched the applicant’s fingerprints – that he had applied for asylum in the Netherlands in 1993, that his request had been refused in December that year and that his objection to the refusal had been declared unfounded in April 1994. 24.     It emerges from the material forwarded by the Dutch authorities that when seeking asylum in 1993 the applicant had referred to his father as a military official; that from 1991 the two had been leaking information about the DSP to the opposition group UDSP and had eventually been arrested; that the applicant had been playing on the same football team as President Mobutu’s son; that on 27 July 1993 he had been granted leave to play a match after which he had managed to escape during a meal with the team; and that afterwards he had travelled to the Netherlands via Bandundu, Ilebo, Lumubashi, Lusaka, Namibia and South Africa. 25.     The Dutch authorities had concluded that the applicant’s account in 1993 had not been credible. C.   The refusal of asylum in Finland 26.     On 6 March 2001 the Directorate of Immigration ( ulkomaalais-virasto, utlänningsverket ) ordered the applicant’s expulsion to the DRC and prohibited him from re-entering Finland, or from entering Sweden, Norway, Denmark or Iceland for two years. The Directorate found the applicant’s account of his having belonged to President Mobutu’s and the DSP Commander’s inner circle not credible. The applicant had also failed to prove his identity. If returned, the applicant would not face any real risk of treatment contrary to Article 3 merely on account of belonging to the same tribe as the former President or having worked as a lower-ranking official in his administration. As far as the Directorate was aware, only higher-ranking officials who had been abusing their office risked prosecution by the Kabila regime. That regime had actually been quite accepting of officials having worked for Mobutu and many such officials of senior rank had already returned to the country. The regime in the DRC had changed again in 2001, following which the general situation in the country had improved. 27.     The Directorate of Immigration further noted that the applicant had been found guilty on two counts of shoplifting in August 1999. 28.     The applicant appealed to the Administrative Court of Helsinki on 26 April 2001. D.   The proceedings before the Helsinki Administrative Court 29.     At the hearing before the Administrative Court on 17 May 2002 the applicant – assisted by counsel and an interpreter – stated that he was the son of an officer in the DSP and had been sent to military service at the age of fourteen. He had passed his school examination in 1990. His first missions for the DSP had involved infiltrating dissident student associations at universities. About 15 secret agents had been operating at different faculties. During a mission to Lumumbashi he had been investigating cobalt smuggling to South Africa. He had travelled to Johannesburg as a “student” and had denounced someone who had eventually been arrested. He had sworn two oaths of loyalty, one for the FAZ ( Forces Armées Zairoises ) and a further one for President Mobutu and the DSP. The latter had been responsible for the President’s security and had been led by a general and his deputy, both of whom the applicant named. The President’s son Kongulu, a captain by rank had been N.’s friend; they had slept in the same pavillon (no. 22 in the first zone of Camp Tshatshi), with the President’s uncle Zimanga Mobutu and his children. The first zone of the compound had comprised altogether 35 pavillons , intended only for the President’s family. The compound had also comprised a second, less protected outer zone. N. drew a map of the compound to show where pavillon no. 22 had been located in relation to the presidential quarters. He also drew a map of the presidential offices as well as of those of the DSP and FAZ. He indicated on the map the location of the President’s special entrance and exit as well as the football field on the compound. 30.     After the applicant had returned from South Africa the DSP commander had assigned him for a mission to the Netherlands. After he had disposed of his Zairean passport in Johannesburg “people smugglers” had handed him a different one. The aim of this mission had been to denounce people who were falsifying Mobutu’s signature to collect money. Moreover, as President’s Mobutu’s son had not been allowed to enter Belgium to trade in cobalt and diamonds the applicant and other DSP agents were assigned to organise his illegal entry into Belgium on a regular basis so he could do his business. A further aim of this mission had been to denounce dissidents in the Netherlands so that reprisals could be taken on their families in Zaire. 31.     The applicant had been escorted out of the Netherlands by police towards the end of 1995. During a further DSP mission to the region of Goma, where troubles had begun with Rwandan refugees entering Zaire, he had found out that Laurent-Désiré Kabila’s rebel troops had been infiltrating and poisoning Zairean soldiers. 32.     Around the end of 1995 it had been discovered that information on President Mobutu’s health was being leaked to Kabila’s troops, involving a suspected traitor within DSP. The main suspect – the head of the postal and telecommunications services who had masterminded the tapping of mobile phones – had eventually fled to USA but had returned when Kabila had taken over power. 33.     As for the events surrounding the overthrow of President Mobutu, the applicant had been woken up by DSP agents during the night 16-17 May 1997 as the DSP could no longer protect the President against Kabila’s troops. The President had told his security staff he would leave for Gbadolite the next morning and that a general within FAZ/DSP “had to die” as he had asked the soldiers to lay down their guns and surrender to Kabila’s troops. A general had been appointed Prime Minister during the emergency state. President Mobutu had told his son Kongulu that he should leave the country as the last member of their family. The applicant had been with Kongulu in the presidential Palais des Marbres when word came that the general in question had been killed. In the morning of 17 May the rebels had entered Kinshasa. The DSP commander had already left for Brazzaville after dispatching the President by plane to Gbadolite. The applicant and others (some 600 persons in total) had crossed the river to escape from Kinshasa to Brazzaville in canoës rapides . From Brazzaville they had planned to fly to Gbadolite. From the Brazzaville airport (“Maya-Maya”) Kongulu had telephoned to ask for a plane to pick them up. The pilot had refused to fly the plane out of Brazzaville as it had been the property of the Republic of Congo. The group had then decided to split up and to take different routes. The applicant and two or three others had gone by train to Pointe Noire and from there by boat to Cabinda in Angola. As he had spoken no local language, he had found a Lingala-speaker and had been able to procure an Angolan identity document paper. The group had nonetheless been arrested at the Cabinda airport as they spoke no Portuguese. Immigration officials had detained them in a room but after the group had bribed a commander they had been able to leave by plane to Luanda. It had been quite common for Zaireans to enter Angola by bribing border officials. 34.     In Luanda N. had failed to obey a police officer in the street since he had not understood Portuguese. He had been detained at the Viam police station, where he had been assaulted. Marks of this were still visible on his body. He had been transferred to the Bengela prison where he been forced to dig graves. Some prisoners had been “recruited” to fight in the army of the Angolan leader Eduardo against the rebel leader Savimbi. N. had avoided this, as he had been injured in the shoulder and could not carry a fire arm. 35.     The applicant had eventually been able to bribe a Lingala-speaking captain to let him “escape”. His friends had brought the necessary money and the captain had accompanied him to Santa Clara at the Angolan-Namibian border. In Santa Clara, Angolan shop owners had organised “people smuggling” to Johannesburg via Windhoek. 36.     The DSP agents had not intended to leave Zaire for good. When President Mobutu had been forced to escape to Morocco to avoid being taken hostage by pro-Kabila agents, N. had decided to go to Johannesburg to join the DSP commander and another DSP general, following which they had repeatedly re-entered Zaire to lead troops in the fighting against Kabila’s army. The two generals had eventually been arrested on the orders of President Mandela following a request by Kabila. 37.     Replying to questions from his counsel, the applicant further explained that President Mobutu had left for Morocco in a Russian cargo plane used for smuggling weapons to the rebel leader Savimbi in Angola. A Mercedes-Benz car had been driven onto the plane so the President could sit properly. While in Brazzaville the applicant and others in his group had watched on CNN how civilians in Kinshasa had been showing the houses of Mobutu’s supporters to the rebels. The applicant would have been killed instantly had he returned then. Mobutu supporters who had been denounced had either been shot, burned alive by being placed in a car tyre set on fire or burned inside cars, as CNN had shown. If the applicant were to be returned to the DRC, those in power and even civilians would recognise him and he would be “attacked” since he had been close to Mobutu. If returned to DRC, a soldier such as himself could even be killed by DSP soldiers currently protecting President Kabila. 38.     Replying to questions from the lawyer for the Immigration Board, the applicant reiterated the name of President Mobutu’s son: Kongulu (a.k.a. “Saddam Hussein”). The applicant further contended that he had sought asylum in the Netherlands for infiltration purposes. 39.     When asked by a judge whether he had had “his” passport on him when leaving Johannesburg for Amsterdam, the applicant answered in the negative. He had paid one of the “people smugglers” who had been working with airport staff to let him go through to the gate only with a boarding pass. 40.     N. had originally wished to go to Australia but this had not been possible to organise due to the number of transits and the need to show a passport. He had not wished to go to France, where many Zaireans were living and he could have been recognised as someone who had been close to Mobutu. The “agent” organising his trip had suggested Finland and the applicant had accepted. As the itinerary had been Johannesburg-Amsterdam-Helsinki he had received two boarding passes already in Johannesburg. The name on his boarding pass had been Joao or something to that effect. There had been no need for him to show a passport. He had financed the ticket by having sold diamonds in Angola. The President’s son had given him diamonds before they had parted. In Amsterdam a person had showed the applicant to the gate for the plane for Finland. 41.     The applicant had not been in touch with his mother, father or sibling as the phone numbers had changed with the new Government. 42.     Questioned further by another judge the applicant stated that the President’s son had authorised DSP agents to take diamonds from the mines. He had been able to cross the border to Angola without any verification taking place. When he had been detained, the diamonds had been in his briefcase which had been locked with a code. He had carried it personally to Luanda and had left it in a house there. When he had been arrested the other members of his party had taken care of his belongings, including the briefcase. The diamonds had been unpolished. As he had had to bribe persons and help various friends out he had sold the last ones in Johannesburg. Their total value had been at least USD 45,000. He had had “a little bit” of money left when he arrived in Finland. 43.     Questioned further by the third judge the applicant explained that his military service had lasted nine months in total; he had been trained as a commando in DSP. After this he had returned to school. His training to become a garde civile had occurred at the age of 17-18. After nine months of training he had returned to DSP and had been expecting to be promoted to lieutenant. He had grown up with the President’s son Kongulu from the age of three, when he had arrived in Kinshasa. Kongulu, two years older, had died in 1999. The applicant had not sought to contact Kongulu’s family and did not know their whereabouts. Kongulu had had three brothers, one of whom had died in AIDS. The applicant had been sent to undergo military service as a punishment for being stubborn. 44.     Questioned about his work and life in Finland the applicant stated that while he was volunteering in the Helsinki refugee reception centre, he was afraid of making friends with other Congolese as they might find out that he had been in DSP and take revenge on him. Two other nationals of the DRC had received residence permits in Finland. 45.     In its final pleadings to the Administrative Court the Immigration Directorate considered the applicant’s account not credible. There were significant contradictions in his account of his military service as well as discrepancies between the asylum record and his oral statements. While he had recounted many facts, he was not generally credible. 46.     Counsel for the applicant underscored that the asylum record from the interview on 22 July 1998 had been very meagre. In his oral statement the applicant had given a detailed and coherent account and his credibility was beyond doubt. The Immigration Board was claiming on very weak grounds that he was not credible. If there was any hesitation as to his credibility, the scales should tip in his favour. He risked persecution in DRC due to his nationality, ethnicity and political opinion. He not only feared ill-treatment emanating from the current regime but also from individual civilians seeking revenge. As he had no home to return to in the DRC he would be easily recognisable as a stranger and risk being questioned. The general human rights situation in the DRC was poor: security forces were carrying out killings and torture was wide-spread. 47.     Counsel noted that all four interpreters had experienced difficulties following N’s vivid account. The asylum record indicated wrongly that the applicant had been living in the presidential palace whereas he had been living within the presidential compound. 48.     On 20 June 2002 the Administrative Court refused the applicant’s appeal by two votes to one. The majority noted that he had been appearing under different names. As an asylum seeker in the Netherlands he had stated that he had been a player on the DRC national football team led by President Mobutu’s son. The applicant’s father was said to have been working in the DSP. When seeking asylum in Finland the applicant had stated that he had worked in the DSP; that he had formed part of Mobutu’s inner circle; that he had been the childhood friend of Mobutu’s son; that he had been sent to the Netherlands to denounce asylum seekers from the DRC; and that he had assisted Mobutu’s son in entering Belgium from France. At the oral hearing the applicant had provided a fairly extensive and detailed account of his activities in the DRC following his removal from the Netherlands as well as of his escape via Brazzaville to Angola during Kabila’s coming to power. The account of his escape via Namibia and Johannesburg in 1998 had resembled significantly the account he had provided to the Dutch authorities when entering that country in 1993. The Administrative Court did not find credible the account of his itinerary in 1998, including his having been able to embark on the plane from Johannesburg without a valid ticket and passport. In those circumstances and considering that it had not been possible to verify his true identity the Administrative Court was not convinced of his general credibility. Moreover, the information he had presented regarding the DSP, Mobutu’s son’s family life and the presidential compound did not in itself show that the applicant had been in the DRC in such a position as to be of particular interest to the current regime. Hence he was not likely to have any justified fear of being persecuted or subjected to inhuman or degrading treatment or to any other serious violation of his rights, if returned to his country. 49.     The dissenting judge found the applicant’s account inconsistent despite its richness in detail. It did not therefore permit the drawing of any reliable conclusion as to his relationship with President Mobutu’s administration or as to whether he had worked in the DSP and, if so, in what position. Considering his detailed account the applicant could, on the one hand, have belonged to Mobutu’s and his relatives’ inner circle without having had any direct contact with the President himself. On the other hand, the applicant could also have received the information regarding Mobutu’s administration from other sources. As his identity and background had not been convincingly established it could not be assessed whether the reason for his departure from the DRC had been persecution within the meaning of section 30 (1) of the Aliens Act. He could therefore not be granted asylum. Despite the lack of clarity of his account it could not be excluded however that he had been one of Mobutu’s personal guards. This lack of clarity should be interpreted to the applicant’s benefit. According to the UNHCR Instructions of January 1998, soldiers of the DSP were assessed as being at a particularly significant risk of being subjected to inhuman or degrading treatment or other serious violations of their rights. The applicant therefore remained in need of protection within the meaning of section 31 of the Aliens Act and should have been granted a residence permit to that effect. 50.     The dissenting référendaire , relying on essentially the same reasons as the dissenting judge, concluded that the applicant should have been granted asylum as being in need of protection from persecution within the meaning of section 30 (1) of the Aliens Act. 51.     The applicant applied to the Supreme Administrative Court for leave to appeal asked for stay of enforcement. E.   The applicant’s intended removal 52.     On 30 October 2002 the applicant was detained by the police and informed that he would be deported on 5 November 2002. His counsel was informed that the Supreme Administrative Court would not grant or rule on his request for a suspension of the deportation order. He was later informed that the applicant would be removed from the country on 6 November 2002. 53.     On 5 November 2002 the Government of Finland decided not to deport the applicant to the DRC until the Court had examined the applicant’s application, following the Court’s interim measure under Rule   39 of the Rules of Court (see § 5 above). F.   The applicant’s common-law wife E. 54.     The applicant and his common-law wife E. met each other in 1999 in Helsinki while they were both asylum seekers. They lived together in a reception centre for nine months until her deportation on 22   February 2000, her first asylum request having been refused. 55.     In April 2002 E. visited the applicant for five days after her prohibition on re-entry had expired. As a result of this visit E. became pregnant. After this they kept up the contact by phone and mail. 56.     On 28 October 2002 E. arrived in Finland and filed a fresh request for asylum the same day. She moved in with the applicant in the reception centre in Helsinki. On 31 October 2002 the Directorate of Immigration refused the request as being manifestly ill-founded. 57.     In January 2003 a child was born to the applicant and E. The applicant’s acknowledgement of paternity was confirmed by the Helsinki District Court in February 2003. G.   Proceedings before the Supreme Administrative Court 58.     On 4   March 2003 the Supreme Administrative Court granted the applicant leave to appeal but went on to refuse his appeal without an oral hearing. It found it established that on 10 August 1993 N. had applied for asylum in the Netherlands, claiming to be a football player and alleging that his brother and father had been working in the DSP. On his arrival in Finland on 20 July 1998 he had filed a hand-written statement in French to the effect that he had left the DRC 13 months earlier (i.e. in June 1997) as President Mobutu and his close entourage had been chased out of the country. In Angola he had been detained because he had been in possession of a badge issued by the DSP and a photograph of President Mobutu. In his asylum interview on 22 July 1998 the applicant had claimed to have been a secret agent in the DSP and an infiltrator, whose actions in the Netherlands had led to the arrest of asylum seekers’ family members in the DRC. Following his deportation from the Netherlands he had allegedly been living with the nephew of the former President. 59.     The applicant had claimed to have been detained for eight months in Angola, whereas in Zaire he had not been arrested, tortured, threatened. Neither had any warrant of arrest been put out in respect of him. 60.     When arriving in the Netherlands the applicant had presented a identity document issued in former Zaire on 25 October 1984, indicating as his date and place of birth 2 December 1972 in Kinshasa. He had claimed to have gone to school in Kinshasa in 1978-1991. In Finland he had presented no identity document but had claimed to have been born in Gbadolite. He had allegedly gone to school for twelve years and had performed his military service in Kinshasa in 1989-90. 61.     According to the records, the applicant had appeared under four different names. In his appeal to the Administrative Court he had explained the reasons for using those different names. The Supreme Administrative Court nevertheless considered that his identity and ethnic origin had remained unclear, which weakened the credibility of his account. 62.     The Supreme Administrative Court further noted that his statements about the reasons for his arrests in Angola had differed. In particular, his allegation that he had, on that occasion, been carrying a DSP membership card and a picture of President Mobutu was not credible. Neither did the Supreme Administrative Court find credible all aspects of his account of his journey to Finland. 63.     In sum, the applicant had not shown in a credible manner that he had remained in the DRC until 17 May 1997. Neither had it been established where he had been residing between his expulsion from the Netherlands in October 1995 and his arrival in Finland in July 1998. Even assuming that he had been sent to the Netherlands to infiltrate other asylum-seekers from his country, the Supreme Administrative Court did not find it credible that he would have gone there as an infiltrator in the manner recounted by him had he really belonged to Mobutu’s close entourage. Taking all the elements into account, it was justified to suspect that his various accounts were not based on facts which had actually occurred. This also weakened his overall credibility. His account as presented to the Finnish authorities could not therefore be used as the sole basis for the court’s decision. 64.     The five judges on the Supreme Administrative Court unanimously concluded as follows: “Taking into account the recent developments in the DRC which have taken place since the applicant has allegedly left the country, the period of time which has passed since his departure, the significant lack of credibility in respect of his allegations concerning the risks he will be facing on his return to the DRC, the fact that he has not even claimed that he has had any contact with the local authorities who have been in office since the change of the regime on 17   May   1997 or that he would have come to their knowledge, the Supreme Administrative Court cannot consider that the applicant is facing a real risk of becoming a subject of interest to the present rulers. Therefore, [the applicant] does not have a well-founded fear of persecution for reasons of his ethnic origin, membership of a particular social group or political opinion within the meaning of Section 30, subsection 1, of the Aliens’ Act. Thus, he cannot be granted asylum. Even though the general security situation in Kinshasa, the capital of the DRC, is still very delicate, there is no well-founded reason to assume that [the applicant] would face a risk of being subjected to serious human rights’ violations or to inhuman or degrading treatment in his country of origin. Thus, he cannot be issued a residence permit on the basis of his need of protection either.” 65.     The Supreme Administrative Court furthermore found that the applicant’s family life as established in Finland was not such as to attract protection under Article 8 of the Convention, given that neither parent had a valid residence permit or any other connection with Finland. H.   Ms. K.K. 66.     K.K. arrived in Finland on 14 February 2002 and filed for asylum or a residence permit on humanitarian grounds on account of her background in the DRC. She claimed to have been a soldier in the DSP. She had been arrested following the murder of President Laurent-Désiré Kabila in January 2001. She had been detained   for some nine months during which she had allegedly   been raped repeatedly by   guards. Her request was refused by the Directorate of Immigration on 21 November 2002. She then appealed to the Helsinki Administrative Court which held an oral hearing on 30 January 2004. 67.     On 8 March 2004 the Administrative Court, by two votes to one (with the référendaire also dissenting), upheld the refusal of asylum but referred the question of a residence permit back to the Directorate, instructing it to issue K.K. with such a permit. The Administrative Court reasoned as follows: “The appellant is no longer likely to be arrested in her country of origin on account of the investigations into the murder of (President) Kabila. The appellant’s personal prison experiences do not result from (her) belonging to a (specific) group in society or from her political views. Hence she cannot be granted asylum. Following the change of President in (the DRC) in January 2001 the general security and human rights situation in the country has improved. The appellant has stated having resided in Kinshasa prior to leaving the country. The Kinshasa area is relatively calm. The fact that armed confrontations are still occurring, particularly in the Eastern parts, and that the country’s human rights situation is not yet stable, is not as such a sufficient ground for granting (the appellant) international protection. When, however, account is taken of the entirety of the circumstances as recounted by the appellant as well as of the information available from international news sources regarding the treatment of soldiers serving the Mobutu regime, it is justified to find that the applicant might, on account of her military background and her past experiences, risk being subjected to inhuman or degrading treatment in her country of origin. (She) is therefore in need of protection within the meaning of section 31 of the Aliens Act and shall, for this reason, be issued with a residence permit.” 68.     The dissenters found, even assuming K.K.’s account to be truthful, that there was no reason for supposing that she would still risk ill-treatment or other serious violations of her rights if returned to the DRC. The dissenters relied on the progress which had taken place in the country as well as on the fact that she had been of no particular interest to the authorities following the coup d’états in 1997 and 2001. She was therefore not in need of protection. 69.     In a letter of 16 April 2003 submitted to the Court in support of the applicant’s case Ms. K.K. stated that she had formed part of the DSP as first sergeant-major based at Camp Tshatshi in Kinshasa. She had been working in the reconnaissance unit of the Camp Commander ( au service des renseignements pour la sécurité des militaires ). She had been arrested on 20 March 2001, a few days after the