CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 20 novembre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .s869C3B81 { margin-top:0pt; margin-left:72pt; margin-bottom:0pt; text-indent:-18pt } .s5F086C28 { width:14pt; font:7pt 'Times New Roman'; display:inline-block } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s99DEABCB { margin-top:6pt; margin-left:78pt; margin-bottom:6pt; text-indent:-49.65pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s959B95E9 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s3225EC85 { width:33.12pt; display:inline-block } .sE6546C2D { width:159.78pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     THIRD SECTION DECISION Application no. 20102/13 A.S. against the Netherlands   The European Court of Human Rights (Third Section), sitting on 20   November 2018 as a Committee composed of:   Dmitry Dedov, President,   Alena Poláčková,   Jolien Schukking, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 20 March 2013, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, A.S. is a Sudanese national, who was born in 1986 and lives in the Netherlands. He was represented before the Court by Mr   C.   den Hartogh, a lawyer practising in the Netherlands, who has also assisted the applicant throughout the domestic proceedings set out below. The President decided ex officio not to disclose the applicant’s identity to the public (Rule   47 § 4 of the Rules of Court). 2.     The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, who was succeeded by Ms B. Koopman, and their Deputy Agent, Ms L. Egmond, who was succeeded by Ms K. Adhin, all of the Ministry of Foreign Affairs. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 2 September 2011 the applicant applied for asylum in the Netherlands, claiming fear of persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). On the same day the immigration authorities held a first interview ( eerste gehoor ) with the applicant about his identity, nationality and travel itinerary. The applicant stated among other things that he had travelled by boat from Port Sudan to Greece where he had stayed for about three months and from where he had travelled by boat to the Netherlands where he had arrived on 20 July 2011. He did not have any travel or identity documents and his journey had lasted about four months in total. 5.     A written record of this interview was drawn up and the applicant was given the opportunity to submit corrections and additions, which the applicant’s lawyer did on the applicant’s behalf on 5 September 2011. In these written corrections and additions, the applicant’s lawyer mentioned that the applicant bore several scars on his body and requested the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie, Integratie en Asiel ; “the Minister”) to have these scars examined. No such examination took place. 6.     On 6 September 2011 a further interview ( nader gehoor ) was held with the applicant about his reasons for seeking asylum. A written record of this interview was drawn up and on 7 September 2011 the applicant’s lawyer submitted written corrections and additions, again including a request to have the applicant’s scars examined. 7.     In his interviews, the applicant stated that his family originally hailed from Darfur and belonged to the Al Gimr population group. The applicant himself was born in a village near Khartoum, where he had lived all his life. He was married and had a daughter. His spouse and their child had not accompanied him but were living in the village in the household of his parents and his youngest brother. The applicant had never been politically active in Sudan. In March 2010 he had been arrested in his home by the National Intelligence and Security Service (“the NISS”). He was suspected of belonging to the rebel group Al-Ade wa Al Musawat (Justice and Equality Movement (“the JEM”)) and involvement in the attack of 12 May 2008 on Omdurman. This city lies on the western banks of the river Nile, opposite the capital Khartoum. He had been held for one year, during which period he had been ill-treated for the purpose of obtaining a confession from him. He had been taken thrice before a judge. On the last time he had been sentenced to death. During his detention, he had developed an itchy skin rash on his arms and torso. After one year he had managed to escape with the help of his uncle, who had bribed some of his guards. The applicant did not submit documents or other items to substantiate his claim. 8.     On 8 September 2011 the Minister notified the applicant of his intention ( voornemen ) to reject the asylum application. On 9 September 2011 the applicant’s lawyer submitted written comments ( zienswijze ) on the Deputy Minister’s intended decision. 9.     By decision of 12 September 2011 the Minister rejected the asylum application. In the absence of a detailed, coherent and verifiable account, the Minister disbelieved the applicant’s account of his journey from Sudan to the Netherlands. The Minister further did not believe the applicant’s claim that he had been arrested in Sudan. On this point, the Minister noted that the applicant had stated that, when he had been arrested by the NISS, they had mentioned his name whereas, according to the applicant, he was not registered in Sudan. According to the Minister the applicant had failed to demonstrate how the NISS had discovered his name and address. Furthermore, the Minister did not attach credence to the applicant’s account of his escape. In this respect the Minister noted that it appeared from the country assessment report on Sudan drawn up by the Netherlands Ministry of Foreign Affairs on 22 June 2011 that persons arrested by the NISS were detained at unknown locations. It was therefore disbelieved that, as stated by the applicant, his uncle had managed to track him down and to bribe his guards. He had further failed to establish why two guards would risk their lives to help someone escape who had been sentenced to death. 10.     The applicant appealed this decision. He further submitted a report of the Medical Examination Group of the Dutch Section of Amnesty International ( Medische onderzoeksgroep ; “the MOG”) of 27 January 2012, which concluded that the applicant’s injuries could be the result of the ill ‑ treatment he claimed to have undergone. 11.     The report summarised the applicant’s asylum statements, described the applicant’s state of health and provided an interpretative opinion ( interpretatie bevindingen lichamelijk onderzoek ). It stated inter alia : “The [applicant] has been arrested and blindfolded at night by 4 armed men and transported by car. He was accused of involvement with the [JEM] which he denied, but he was beaten with sticks and cables, also on his hands and feet, hanged by his cuffed hands and cold water poured over him. He stated that his ears had been pulled with pliers .... The [applicant] has fallen ill in the prison in Sudan, he got a rash on his arms and torso with a lot of itching all over his body; he also got a small swelling on a buttock which, in the [applicant’s] words, has been cut out in prison. Because he was hit with a heavy iron bar on his toe, the nail of his big toe had loosened which had caused him a lot of pain. He had also been beaten on his calve with a baton with a nail sticking out which had caused a big wound due to which and for about 6 months he could poorly or barely walk. ... The impaired and painful movement pattern of the left shoulder fits injuries caused by protracted stretching such as hanging by the arms. The origin of the small scars is less obvious; the [applicant] has been beaten with sticks but not on the naked body; through clothing this usually does not cause scars. The small sharp-defined scars may fit small injuries which were infected but have healed well. The scar on the left wrist may fit a burn. The scar on the left calve may fit an injury caused by a nail. The skin discolorations found on the front and back of the torso would be remnants of scabies suffered [by the applicant], as already also diagnosed and treated by the general practitioner. ... The [applicant’s] mental state can be described as traumatised which shows in his lack of initiative and flat facial expressions; it is very well possible that this stems from the alleged motives. ...” 12.     On 16 March 2012 the Minister informed the applicant that the decision of 12 September 2011 had been withdrawn. The applicant therefore withdrew his appeal on 19 March 2012. 13.     In his decision of 16 May 2012, following a fresh intended rejection of 25 April 2012 and written comments submitted by the applicant’s lawyer, the Minister again rejected the applicant’s asylum application. He considered that the applicant’s failure to substantiate in a sufficient manner his stated identity, nationality and travel itinerary as well as his failure to give a detailed, coherent and verifiable account of his journey from Port Sudan, via Greece, to the Netherlands, cast doubt on the sincerity of his asylum claim and detracted from the credibility of his asylum statement. As to the question whether nevertheless the applicant’s asylum statement should be accepted as positively persuasive ( positieve overtuigingskracht ), the Minister found that this was not the case. The applicant had failed to establish why he had been suspected of involvement in the JEM and on what grounds he had been sentenced to death. It was further considered that the applicant had failed to establish why he had been able to escape prison so easily. The medical report of the MOG did not alter this. The Minister emphasised that he did not challenge the medical complaints described in the report, but only the conclusions attached to them by the applicant. The Minister concluded that no credence could be attached to the applicant’s asylum statement and rejected the applicant’s arguments under Article 3 of the Convention. 14.     On 11 June 2012 the applicant lodged an appeal to the Regional Court ( rechtbank ) of The Hague. He argued inter alia that, other than his Darfuri origins, he was not aware of any reasons why he would be suspected of JEM involvement. However, according to country-of-origin information, this (i.e. his Darfuri origins) could be enough. Thus, a report compiled by the Internal Displacement Monitoring Centre and the Norwegian Refugee Council, dated 23 December 2010, stated: “Following the 10 May 2008 attack on Omdurman ... by the Darfuri rebels from the Justice and Equality Movement, several human rights organisations accused the Sudanese authorities of arbitrary arrests and detention, beatings, dubious judicial proceedings, extra-judicial executions, torture and ill-treatment of detainees. These practices were largely targeted at Darfuris living in Khartoum/Omdurman on the basis of their ethnic origin or appearance.” 15.     The applicant also referred to a Report dated 27 October 2009 of the Panel of Experts established by the United Nations (UN) Security Council pursuant to resolution 1591 (2005) concerning the Sudan, which stated: “269.     The Panel has received a significant number of reports of arbitrary arrest and detention as well as ill-treatment and torture of persons while in the custody of the Government security apparatus. Most of these cases are related to the campaign carried out by NISS and the Military Intelligence with the cooperation of the Ministry of the Interior, in and outside Darfur, against Darfurians suspected of being linked to the attack against Omdurman on 10 May 2008. According to the United Nations High Commissioner for Human Rights, ‘among those arrested by NISS were hundreds of civilians of Darfurian origin who in many cases appeared to have been targeted solely because of their Darfurian ethnicity or appearance.” 16.     In addition, the applicant referred to the United States’ Department of State 2009 Human Rights Report on Sudan, which included the following: “Persons continued to be tried in antiterrorism courts in connection with the May 2008 JEM attack on Omdurman. Authorities did not permit defendants access to lawyers before trial, held them incommunicado for up to four months, and reportedly tortured defendants. From April to June the antiterrorism courts sentenced 53 persons to death. At year’s end the total number of death sentences in the JEM trials was 103.” 17.     As to the Minister’s argument that the NISS kept detainees at unknown places and his uncle would therefore not have been able to find him, the applicant referred to country-of-origin information according to which the places of detention were not all that secret and he argued that his uncle had been in the army and that this background may have helped him trace the applicant. As for the country-of-origin information, the applicant referred to an Amnesty International document of 21 January 2010, according to which 106 death sentences had been passed by special courts since July 2008 and that all convicts were male and held in Kober prison in Khartoum. 18.     He also referred to a Human Rights Watch report of June 2011 which stated inter alia : “The security forces have targeted Darfuri activists for detention and t. In late October and early November 2010, for example, NISS arrested a group of 13 Darfuri journalists and human rights activists and detained them in their Khartoum offices before transferring them to Kober prison.” 19.     In its judgment of 27 December 2012, following a hearing held on 12 October 2012 which was attended by the applicant and his lawyer, the Regional Court of The Hague sitting in Arnhem rejected the applicant’s appeal. In its relevant part, this judgment reads: “6.     ... In accordance with section 31 § 2(f) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), the circumstance that an alien is unable to submit any travel or identity documents or other materials in support of his asylum application which are necessary to assess that application is also taken into account in the assessment of an asylum application, unless the alien can demonstrate that this inability cannot be imputed to him. 7.     It is established that the [applicant] has not submitted any travel documents. In the Court’s opinion the [Minister] could in reason have held this against the [applicant], because he has not produced any travel documents or other indicative evidence in substantiation of the account of his journey and neither has he been able to give a detailed, coherent and verifiable account of his travel itinerary. In this the [Minister] could take into account that the [applicant] has been unable to submit indicative evidence of the journey and that the [applicant], who has stated that he has travelled by boat from Port Sudan to Greece and subsequently to the Netherlands is unable to give any information about matters like the name of the boat, under what flag it was sailing and whether it has docked at another harbour on the way. The [Minister] could refuse to accept the mere statement of the [applicant] that he had boarded and disembarked during the night. ... 9.     When a circumstance as referred to in section 31 § 2(f) of the Aliens Act 2000 obtains, the asylum statement must – according to paragraph C14/204 of the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire 2000 ) – have positive persuasiveness in order to attach credence to it. 10.     The question then arises whether the [Minister] could in reason consider that the [applicant’s] asylum statement lacks positive persuasiveness. In this, the criterion is not the judge’s own opinion about the credibility of the asylum statement, but the question whether there is ground for holding that the [Minister] – noting the reasons set out in the intention and the impugned decision, considered in the light of the records drawn up on the interviews, the corrections, additions and written comments – could not in reason have reached his finding about the credibility of the asylum statement. 11.     In the court’s opinion, the [Minister] could in reason find that the [applicant’s] asylum statement lacks positive persuasiveness. In this, the [Minister] has taken into account that the [applicant] has not established what caused his arrest, detention and conviction. The [applicant] has not indicated for what reason he was suspected of involvement with an opposition party in Darfur and his argument that his origin apparently sufficed for the suspicion is merely an own assumption which has remained wholly unsubstantiated. The [applicant’s] reference to the Report of the Panel of Experts established pursuant to resolution 1591 (2005) concerning the Sudan does – according to the [Minister] – not affect that it remains for the [applicant] to establish the alleged events which were the cause for leaving the country. According to the Minister, a mere reference to this report does not suffice. The [Minister] has further found not credible the relatively simple manner in which the [applicant] has escaped. In this, the [Minister] has taken into account that it appears from the official country report ( ambtsbericht ) on Sudan of 27 June 2012, which concerns the period from mid-April 2011 up to and including May 2012, that persons who have been apprehended by the Sudanese authorities are being detained on unknown locations and have in fact (temporarily) disappeared. The [Minister] has found vague and thus dismissed as insufficient, the [applicant’s] unsubstantiated claim that his uncle had a military past and thus had been able to find out where the [applicant] was being held. In the [Minister’s] opinion, the height of the bribe paid to free the [applicant] contrasts sharply with the life sentence and security measures imposed [on the applicant] and therefore also on this point the asylum statement is not persuasive. The [applicant’s] reference to a number of public sources does not render credible that his uncle has been able to find him, in which context the [Minister] has considered that written comments or grounds for appeal are not intended to adapt or make additions to – at wish and at a later stage – statements given by the [applicant]. 12.     The court further finds that it was possible for the [Minister] to conclude that, although admittedly concluded in the MOG report of Amnesty International submitted by the [applicant] that the noted [medical] complaints (can) fit the events alleged by the [applicant], this does not render his asylum statement positively persuasive. ... [the Regional Court quotes here the conclusion of the Medical Examination Group of the Dutch Section of Amnesty International (see paragraph 10 above) and part of §   187 of the Istanbul Protocol (see paragraph 28 below)] ... . 16.     The court notes that the gradations used in the MOG report concerning the level of consistency between the [applicant’s] medical complaints and what he has presented in his asylum statement about their origins leaves room for many other causes than the alleged torture. It was therefore possible for the [Minister] to adopt the position that the report does not alter the [Minister’s] finding about the credibility of the asylum statement. Since the ill-treatment c.q. torture has not been established, there is – other than argued by the [applicant] – no similar situation as in the judgment of the European Court of Human Rights of 9 March 2010, no. 41827/07, R.C. v.   Sweden, Jurisprudentie Vreemdelingenrecht [ Immigration Law Reports ] 2010/147. 17.     In view of the above and having taken into account the assessment framework as set out in paragraph 10 above, there is no ground for finding that the [Minister] could not reasonably have adopted the view that the [applicant’s] asylum statement lacks positive persuasiveness. The court, taking into account that the fear of persecution alleged by the [applicant] is derived from the arrest, detention, conviction and escape which have not been found credible by the [Minister], finds that it was not necessary for the [Minister] to assess the gravity ( zwaarwegendheid ) [of the asylum statement]. This means that the [Minister] has justly concluded that the [applicant] is not eligible for a[n asylum-based] residence permit based on one the grounds set out in section   29   §   1 of the Aliens Act 2000. ...” 20.     On 8 January 2013 the applicant lodged a further appeal before the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ). As a further appeal did not have automatic suspensive effect, the applicant applied for a provisional measure ( voorlopige voorziening ) allowing him to remain in the Netherlands pending the outcome of the further appeal. On 11 March 2013 the President of the Administrative Jurisdiction Division rejected the request for a provisional measure, finding that it was unclear whether and, if so when, removal would take place. This finding was not altered by the circumstance that on 20   February 2013 the applicant had been placed in immigration detention ( vreemdelingenbewaring ). B.     Subsequent developments 21.     The application was lodged with the Court on 20 March 2013, together with a request to issue an interim measure under Rule 39 of the Rules of the Court seeking that the applicant’s removal to Sudan be stayed pending the proceedings before the Court. 22.     On 9 April 2013 the Acting President of the Section to which the case had been allocated decided to grant the request to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Sudan until further notice. On 12 April 2013 and in connection with the decision to apply Rule 39, the order for the applicant’s placement in immigration detention was lifted and the applicant was released from immigration detention. 23.     The applicant’s further appeal of 8 January 2013 was rejected on 12   February 2014 by the Administrative Jurisdiction Division. It held that under section 91 § 2 of the Aliens Act 2000, no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against that ruling. C.     Relevant domestic law and practice 24.     The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Further rules are laid down in the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ), the Regulation on Aliens 2000 ( Voorschrift Vreemdelingen 2000 ) and the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire 2000 ). The General Administrative Law Act ( Algemene Wet Bestuursrecht ) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in the latter Act. 25.     Section 13 of the Aliens Act 2000 provides that an application for a residence permit shall be granted only if: a)     international obligations require this; b)     the presence of the alien would serve a genuine interest of the Netherlands, or c)     urgent reasons of a humanitarian nature require this. 1.     Asylum applications 26.     A general overview of the relevant domestic law and practice as regards asylum proceedings has been set out in X v. the Netherlands (no.   14319/17, §§ 34-40, 10   July 2018). 2.     Domestic policy in respect of Sudanese asylum seekers 27.     An official country report ( algemeen ambtsbericht ) on Sudan released by the Netherlands Minister of Foreign Affairs in June 2011 and covering the situation in Sudan in the period between May 2010 and mid ‑ April 2011, states inter alia: “In February 2010, the government of Sudan and the JEM signed a framework agreement in which the parties declared a cease-fire, and agreed on an amnesty for members of the JEM and release of all JEM prisoners and convicts. According to the framework agreement, a definitive agreement should be signed by 15 March 2010. However, this deadline was not met. In March 2010, the government of Sudan also concluded with the Liberation and Justice Movement (LJM) a framework agreement, including a cease-fire, which should form the starting point for further negotiations. In response to the negotiations between the LJM and the government, the JEM suspended the negotiations with the government.” 28.     The official country report on Sudan, released by the Minister of Foreign Affairs on 20 June 2017, covering the situation in Sudan in the period between July 2015 and the end of May 2017, contains the following statements: “During the reference period various parties ... have made attempts to obtain the return to the negotiating table of the [Sudanese] government and the rebel movements who have not signed the Doha Document for Peace in Darfur, such as the Justice and Equality Movement (JEM)/Gibril, the Sudan Liberation Army/Minni Minnawi (SLA/MM) and the Sudan Liberation Army/Abdul Wahid (SLA/AW). On 8 August 2016 SLA/MM and JEM-Gibril as members of the Sudan Call signed the AUHIP [African Union High Level Implementation Panel for the Sudan and South Sudan] roadmap after all and the next day negotiations about a cease-fire were resumed. ... JEM and SLA/MM are no longer a significant factor in Darfur as a consequence of the effective strategy of the government to curb the uprising. JEM now mainly operates in South-Sudan. ... According to a source about one million Fur from Darfur are living in Khartoum and its surrounding area. Most Darfuris are living in poor neighbourhoods in North-Khartoum ..., the area between the Blue and the White Nile ... and in Omdurman ... Sometimes dilapidated neighbourhoods are cleared and their inhabitants forced to move further away from Khartoum. Darfuris and persons hailing from the Two Areas who can afford it are living in better neighbourhoods of the city, including the centre. The improved economic situation in Khartoum, including improved employment rates, is one of the pull factors of migration from Darfur and the Two Areas to Khartoum. Many find work in the informal sector, for instance as guards, and in construction and agriculture. Many Darfuris work in laundry shops all over Khartoum. Darfuris are also working as university teachers. Because it is difficult for Darfuris and persons originating from the Two Areas to find work in the formal sector, those with an academic degree look for work abroad, for instance in the Gulf States or Europe. Darfuris and persons originating from the Two Areas are still often referred to by members of Arabic tribes as ‘slave’. However, despite systematic discrimination Darfuris and persons originating from the Two Areas can maintain themselves reasonably in daily life in Khartoum. They are not as much discriminated against by other citizens but by the public order police who extort them and by some authorities. According to sources in Khartoum, Darfuris are not looked down upon because of their ethnicity but because of their bad economic circumstances. ... In general, it can be said that persons, who are considered a threat by the Sudanese authorities, risk falling victim to human rights violations upon return, including detention and torture. An example might be human rights defenders having profiled themselves as critical. According to various sources, this would only concern a small number of Sudanese asylum-seekers. It is assumed that the Sudanese Government monitors activities of opponents abroad but from this side it is not known to what extent and what the consequences thereof are. According to various sources, there are no indications that rejected asylum-seekers from Darfur or the Two Areas, after their forced return, have encountered problems upon arrival in Khartoum. Some rejected asylum-seekers have been removed from Switzerland and Norway during the reference period. None of them have been arrested upon return.” 29.     On 20 November 2017 the Deputy Secretary of Justice and Security sent a letter to the Lower House of Parliament ( Tweede Kamer der Staten ‑ Generaal ) on the country-specific asylum policy in respect of Sudan. In its relevant part, it reads as follows: “On 20 June 2017 the Minister of Foreign Affairs has released a new official country assessment report on Sudan, describing the situation in that country from July 2015 up to and including May 2017. Insofar as relevant for policy determination, it appears from this report that the security situation in Darfur as well as in the areas of South Kordofan and Blue Nile has remained as bad as before. A national dialogue between the government and the (armed) opposition, which took place during the reporting period, has brought little change. Although some rebel groups have laid down their weapons, most opposition groups and the most important (armed) opposition group have boycotted the national dialogue. Just as during the previous reporting period, the situation in the conflict areas is diffuse and volatile. In the areas, there is still random violence and large numbers of refugees and displaced persons. In South Kordofan and Blue Nile, armed opposition groups continue their battle against the government. In Darfur, the battle dynamics have evolved from rebels versus the government to a multitude of actors in a diversity of conflicts. The highest number of battles in this region no longer takes place between government and rebel forces but in the context of tribal violence. For the purpose of careful decision-making in individual cases and in order to be able – in assessing these cases – to do justice to the complex and evolving situation, some adjustments to the applicable policy are called for. The starting point of the country-specific asylum policy in respect of Sudan remains that asylum applications of Sudanese foreign nationals are assessed on the basis of the individual asylum statement of the asylum-seeker. At the same time, special policies remain in place for specific population groups and specific areas in Sudan, but certain components must be adjusted. Under the policy of previous years – in contrast to the other parts of Darfur – West Darfur was not considered as being in a situation as meant in Article 15c of the [Council Directive 2004/83/EC of 29 April 2004] Qualification Directive, because the situation there was relatively calm and stable. However, it appears from the official country assessment report that during the reporting period violent tribal violence, resulting in deaths and large numbers of displaced persons, has emerged also in West Darfur. The reason for the difference in policy between the different parts has thus been cancelled, especially now that most of the fighting takes place in the other parts of Darfur as part of tribal violence. In view of this, the policy has been adjusted in such a way that a situation as referred to in Article 15c of the Qualification Directive is now assumed to pertain throughout Darfur. The reason to differ in policy between the different parts has thus ceased to be valid, the more so now also in the other parts of Darfur most of the fighting occurs in the framework of tribal violence. In view of this, the policy has been adjusted in such a way that a situation as referred to in Article   15c of the Qualification Directive is now assumed to pertain throughout Darfur. A further policy adjustment is called for, because it appears from the official report that the security situation has deteriorated for people who are committed to promoting respect for human rights. They are monitored, threatened, arrested, detained, ill-treated and persecuted by the Sudanese security services. Human rights activists are therefore designated as an at ‑ risk group in the policy. This means that in respect of foreigners, who have demonstrated that they have been active in the field of human rights in Sudan, limited indications suffice to make a plausible case that problems connected with one of the grounds for persecution give rise to a well-founded fear of persecution. However, the individualisation requirement ( individualiseringsvereiste ) will remain applicable to foreigners who belong to this at-risk group. It is expected that the above policy adjustments will have limited significance for the granting of permits. The influx of foreigners from Sudan is relatively constant. Moreover, the policy in respect of internal fight or internal relocation to another location in Sudan has remained unchanged.” 30.     The policy changes indicated in this letter are included in the decision of 31 May 2018, no. 2018/3, amending the Aliens Act 2000 Implementation Guidelines ( Wijzigingsbesluit Vreemdelingencirculaire 2000; “WBV 2018/3”) which entered into force on 13 June 2018. Under the new policy in respect of Sudan only those persons are considered as belonging to a risk-group: who have been active in the field of human rights; who are (alleged) supporters of an armed opposition group. A person is in any event regarded as an (alleged) supporter of an armed opposition group, if he/she belongs to: -           a non-Arab population group, hails from Darfur and had his/her normal residence there before arriving in the Netherlands; or -           a non-Arab population group from the Nuba mountains and had his/her normal residence there before arriving in the Netherlands. It is further accepted under the new policy and in respect of persons hailing from Darfur and from South Kordofan (including Abyei) and Blue Nile, that in those areas the general situation is such that removal must be regarded as entailing a real risk of incurring serious harm. D.     Relevant international materials 31.     In paragraph 187 of the United Nations Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Istanbul Protocol”; see Batı and Others v. Turkey , nos. 33097/96 and 57834/00, § 100, ECHR 2004 ‑ IV (extracts)) it is stated: “For each lesion and for the overall pattern of lesions, the physician should indicate the degree of consistency between it and the attribution given by the patient. The following terms are generally used: (a)     Not consistent: the lesion could not have been caused by the trauma described; (b)     Consistent with: the lesion could have been caused by the trauma described, but it is non-specific and there are many other possible causes; (c)     Highly consistent: the lesion could have been caused by the trauma described, and there are few other possible causes; (d)     Typical of: this is an appearance that is usually found with this kind of trauma, but there are other possible causes; (e)     Diagnostic of: this appearance could not have been caused in any way other than that described.” 32.     The Country of Origin Information Report on Sudan, released on 16   April 2010 by the UK Home Office contains the following passages: “This Country of Origin Information Report (COI Report) has been produced by COI Service, United Kingdom Border Agency (UKBA), for use by officials involved in the asylum/human rights determination process. The Report provides general background information about the issues most commonly raised in asylum/human rights claims made in the United Kingdom. The main body of the report includes information available up to 1 March 2010. The ‘Latest News’ section contains further brief information on events and reports accessed from 2   March 2010 to 10 April 2010. ... 18 March [2010] Sudan signed a ceasefire agreement with a second Darfur rebel group as part of the Government’s campaign to resolve the conflict before elections. However there were concerns the recent deal with the Liberation and Justice Movement (LJM), an umbrella group of small factions, could threaten the continued fragile peace accord signed by the Justice and Equality Movement (JEM). A spokesperson for JEM dismissed the latest deal with the LJM as ‘meaningless’. ... 17 March [2010] Amid signs the peace deal with the Justice and Equality Movement (JEM) was faltering, Sudanese security officials [re-]arrested 15   Darfur rebels weeks after President Al Bashir had pardoned and freed them as part of the Darfur peace process. Reuters Africa, Sudan security re ‑ arrests Darfur rebels: lawyer, 17 March 2010 ... 3 March [2010] The rebel Justice and Equality Movement (JEM) leader, Khalil Ibrahim, threatened to pull out of peace talks with the Government, because of parallel talks being progressed with other rebel groups. JEM has wanted to progress peace talks exclusively with the government and represent the collective interests of the various Darfur rebel groups. ... Trials relating to the Justice and Equality Movement attack on Omdurman – 10   May 2008 13.16     With regard to trials connected to the 10 May 2008 Justice and Equality Movement attack on Omdurman, the USSD Report 2008: Sudan, noted that there were special anti-terrorism courts set up to hear such cases but they ‘... did not have the same rights as those tried in regular courts’. 13.17     The Human Rights Watch report, End Unfair Trials, dated 24 June 2008, noted that Special Courts were created under terrorism law to specifically try individuals accused of participating in the Omdurman attack by JEM in May [2008]: ‘... Lawyers for some of the 36 defendants told Human Rights Watch that they had limited or no access to their clients and described the court proceeding as arbitrary, forcing some defense lawyers to withdraw. Under Sudanese law, a defendant can be convicted on the basis of a confession made while in incommunicado detention or during coerced interrogations.’ 13.18     The Report of the Special Rapporteur on the situation of Human Rights in the Sudan, published June 2009, noted that: ‘In April and May 2009, anti-terrorism courts in Khartoum sentenced a further 41 individuals to death for participation in the May 2008 JEM attack, bringing the total number of death sentences for participation in the attack to 91. As in earlier trials, those condemned were convicted of charges under the Criminal Act, Anti-Terrorism Act, and Arms, Ammunitions and Explosives Act. The charges did not aim to establish individual criminal responsibility for killing or injuring civilians or recruiting child soldiers. Instead, they referred mainly to collective crimes including criminal conspiracy, membership of a terrorist organization and waging war against the state. Defendants were not granted access to defense counsel until the trials began. The accused were held incommunicado for up to four months before the trials, during which most of them registered confessions they later retracted in court, alleging the statements were made under duress. Nonetheless, the confessions were admitted as prosecution evidence and eventually formed part of the basis for the verdicts. In a meeting between the Special Rapporteur and the National Assembly’s Human Rights Committee on 3 June 2009, the Committee stated the court sessions were closed, and that its members were not able to attend.’ 13.19     The Report of the Secretary-General on the deployment of the African Union-United Nations Hybrid Operation in Darfur, dated 13 July 2009, reported that on 9 June 2009, a criminal court in Khartoum sentenced a further ‘12 members of the Justice and Equality Movement to death for their involvement ... [in the May 2008 attacks], bringing the total number of death sentences for members of the Justice and Equality movement to 103.’ 13.20     Reuters Africa reported on 20 January 2010, that a Khartoum court had passed a further two death sentences against suspected JEM members. A total of 105 people awaiting execution, were due to be freed under a good will agreement following the release of 82 prisoners by JEM in 2009. On 24 February 2010, Reuters Alertnet reported that the government had ‘... freed 57 JEM fighters, half the number of men imprisoned by Khartoum after being implicated in the insurgent force’s shock attack on the capital in 2008. ... The releases were promised as part of the new JEM ... [temporary ceasefire agreed on 20 February 2010].’ ... JEM and the aftermath of the Omdurman attack of May 2008 17.22     The Guardian article dated 12 May 2008, entitled ‘Sudan severs Chad ties after Darfur rebels attack capita’ observed that: ‘The assault by the Justice and Equality Movement (JEM) on Omdurman on Saturday [9 May 2008] marked the first time in decades of civil war that any rebel group had reached Sudan’s capital. Government forces repulsed the attack, which prompted an overnight curfew in Khartoum, and accusing fingers were immediately pointed towards neighbouring Chad.... Chad denied any involvement, but it does have a history of close military ties with JEM. ... Unlike other Darfur rebel movements, JEM has a countrywide agenda, and has launched previous attacks in Kordofan, including an assault on a Chinese-run oilfield last year. It accuses Bashir’s Arab-dominated regime of propagating inequality throughout Sudan, and wants the different regions to have a stronger say in national government. With just a few thousand fighters, JEM is vastly outnumbered and outgunned by the 100,000 strong Sudanese army. But it does have money and powerful benefactors.’ 17.23     The UN Report of the Special Rapporteur dated June 2009 in considering the impact of the Omdurman attack reported: ‘Government security forces arrested hundreds of people in Khartoum and other parts of Sudan on suspicion of alleged involvement. The UNMIS [United Nations Mission in Sudan] Human Rights section received reports of the arrests of close to 1,000 people, the majority of whom were ethnic Darfurians, and repeatedly sought confirmation of the arrests and detentions from the authorities since May 2008. The Special Rapporteur was pleased to attend the Human Rights Forum on 26 May 2009, where discussions were held to clarify the fate of around 200 people, including eight presumed children, who are not known to have been either charged or released following their reported arrests. On 3 June the Special Rapporteur met with the General Prosecutor for Khartoum State. According to the Prosecutor, 51   people were dismissed at the investigation stage by the Prosecutor; 24 were dropped at the trial stage by the Court; 53 were released on bail; 24 were released by Presidential decree; 12 were referred to Juvenile Court; 3 were acquitted on account of mental illness and referred to mental hospital; 91 convicted and sentenced to death; and one convicted and sentenced to five years imprisonment. The Prosecutor did not provide information on the approximately 200 people whose status and whereabouts remained unconfirmed.’ 17.24     Similarly Human Rights Watch in its report The Way Forward: Ending Human Rights Abuses and Repression across Sudan dated October 2009 reported that: ‘[t]he fate of up to 200 people who “disappeared” in the government crackdown after the May 2008 attack on Omdurman by Justice and Equality Movement   (JEM) rebel forces remains unknown, while at least ten are still being held incommunicado without charge 15 months after their arrest. ...’ 17.25     Amnesty International’s (AI) 2009 Annual Report for Sudan, covering events in 2008, observed that following the JEM attack on Omdurman on 10   May 2008: ‘Hundreds of civilians were arrested in the aftermath, with reports of extrajudicial executions, torture and other forms of ill-treatment. Many people were held incommunicado in unofficial places of detention. The youngest victim of such detention was a nine-month-old infant who was held with his mother underground in a detention centre for two months. At least one individual died as a result of ill ‑ treatment in detention during the first two weeks after the arrests... Although many of the arrested individuals were released, many remained unaccounted for, their whereabouts and fate unknown.’ 17.26     The USSD Report 2008 also noted that: ‘NISS arrested and detained large numbers of Darfuris in May and June [2008] following the May 10 JEM attack on Omdurman. Human rights organizations claimed that while most of the detainees were released, the government continued to hold several hundred detainees without charges at year’s end.’ The same report further added that: ‘Several members of S[udan] L[iberation] A[rmy]/Minni Minawi were arrested at their homes, beaten, and detained overnight following the May 10 JEM attack.’ 17.27     The UN Human Rights Council (UNHRC) Report of the Working Group on Enforced or Involuntary Disappearances (EID), published in February 2009 noted: ‘... Credible sources reported that following an attack on 10 May 2008 by rebel forces [JEM] on Omdurman (one of the three towns that form the Sudanese capital of Khartoum) the Sudanese authorities arrested hundreds of men, women and children, many of whom were subjected to disappearance. Many of those arrested were picked up in public locations, such as on public transport and on the street. State agents are reported to have transferred an unknown number of detainees to locations outside Khartoum, such as Shandi to the north of the capital and Port Sudan in eastern Sudan. Allegedly, many relatives of arrested or disappeared individuals reported that they have been unable to get information on the whereabouts of their loved ones, and that the authorities have refused to acknowledge that they are in detention. Reportedly, relatives who have tried to locate detainees contacted the media or the National Intelligence and Security Services Information Office have themselves been harassed and risked being arrested. ...’ Treatment of ethnic groups from Darfur ... 22.33     Amnesty International’s (AI) 2009 Annual Report for Sudan, covering events in 2008, recorded that following the JEM attack on Omdurman on 10   May [2008] government forces combed Omdurman, arresting and detaining any individual – man, woman or child – of Darfuri appearance, those suspected of supporting opposition groups, and especially Zaghawas. Whilst the UN Report of the Special Rapporteur, dated June 2009, also noted that the UNMIS   [United Nations Mission in Sudan] Human Rights section received reports, following the May 2008 attack, ‘... of the arrests of close to 1,000 people, the majority of whom were ethnic Darfurians.’ 22.34     The UN Rep