CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 août 2012

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }       THIRD SECTION Application no. 10827/12 A and B against the Netherlands lodged on 17 February 2012 STATEMENT OF FACTS     The applicants, Mr A and Ms B, are a married couple of Mongolian nationality, who were born in 1980 and 1978 respectively and live in the Netherlands. They are represented before the Court by Ms J. de Jong, a lawyer practising in Utrecht. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants fled on 1 May 2009 from their native Mongolia to the Netherlands where they applied for asylum, submitting the following. The first applicant had received training as a Lama, a Buddhist monk. After his marriage he had resigned as a monk and started to work as a spiritual counsellor. Among his clients was Mr X, a prominent political leader. When a former business associate of Mr X was placed in pre-trial detention, the first applicant, who happened to be also the spiritual counsellor of this person, received a letter from this business associate containing incriminating information on Mr X According to this letter Mr   X was involved in corruption. The first applicant did not discuss this information with anyone. Soon after he had received this letter, the first applicant received several threatening telephone calls in which he was summoned to hand over the letter and his records of clients and to keep silent. The second applicant received some threatening calls as well. On 10   July 2008 the first applicant learned that the former business associate had died in prison. This motivated the first applicant to pass the letter on to a judge, who started to investigate the case. On 2 or 3 August 2008 the first applicant was assaulted by two unknown men, demanding the letter and his client records. The applicants decided to leave their house and to go into hiding just outside Ulaanbaatar, where they stayed until they left the country. Although the first applicant had changed his telephone number, the telephone threats continued. On 28 October 2008 the first applicant had to travel to Dorngovi, Mongolia, a ride of 600 km. After a short break for lunch the first applicant had a car accident under suspicious circumstances, one of the front wheels broke off the car and afterwards the first applicant received a phone call in which was referred to the car accident. Apart from a few scratches, the first applicant remained unharmed. On 1 February 2009 the first applicant was informed that the judge, to whom he had given the incriminating letter, had suddenly died of food poisoning. The applicants decided to leave the country. On 5 August 2009 the applicants applied for asylum in the Netherlands. On 5 August 2009, in two separate interviews, the applicants were interviewed about their identity, nationality and travel route. On 7 August 2009 the applicants, in two separate interviews, were interviewed about their asylum motives. They claimed that Mr X was responsible for the threats they had received and for the deaths of the business associate and the judge. Therefore, the applicants were unable to receive protection of the Mongolian Government against those threats. On 21 September 2009 the applicants submitted their corrections and additions to the second interview. By letters of 1 December 2009 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) notified the applicants of her intention ( voornemen ) to reject the applicants’ asylum applications. The fact that the applicants had failed to submit documents establishing their identity, nationality and travel route – which failure was considered to be attributable to them – was held to cast doubt on the sincerity of their account and to detract from its credibility. The events the first applicant had described were found credible, but, having regard to a number of newspaper articles in the western press, in relation to Mr X, and articles in the daily Mongolian newspapers, the suspicions of the applicants that Mr X was responsible for those events were found to lack credence. The fact that the first applicant was summoned to hand over the incriminating letter did not prove that Mr X had authorised those actions. Mr X was never mentioned in the phone calls or by the men who attacked the first applicant. Therefore, the applicants could and should have requested the protection of the Mongolian authorities. The applicants had failed to establish that the Mongolian authorities were unable or unwilling to protect the applicants. In respect of the applicants’ reliance on Article 3 of the Convention, the Deputy Minister found that their account provided insufficient indications to assume that they, if returned to their country of origin, would run a real risk of being subjected to treatment in breach of that provision. In their written comments ( zienswijze ) of 23 December 2009 the applicants maintained their account and denied that it lacked credibility by, inter alia , claiming that corruption is rife within the Mongolian authorities. Furthermore, they argued that the cited newspaper articles did not mention that Mr X was not corrupt. Finally, they stated that attacks on a high ranking lama as the first applicant, can only be carried out with the backing of other high ranking officials. On 21 January 2010, in two separate decisions, the Deputy Minister refused the applicants’ asylum applications, finding that they had failed to dispel the doubts about the credibility of their accounts. The Deputy Minister further considered that the fact that the persecutors asked after the incriminating letter in their phone calls and during the attack, did not mean that Mr X was responsible for the attacks. It could be that someone else had commissioned the threats and attacks. Furthermore, the applicants had failed to substantiate their claim that Mr X was corrupt. The fact that corruption was rife within the Mongolian Government did not mean that Mr X was corrupt as well. Finally, the applicants had failed to establish that Mr X was responsible for the attacks. The attacks on the first applicant could have been carried out by accomplices of other powerful men. On 17 February 2010 the applicants filed an appeal with the Regional Court ( Rechtbank ) in The Hague, sitting in Assen. At the same time they requested that court issued a provisional measure ( voorlopige voorziening ) to the effect that their expulsion would be suspended pending the outcome of the procedure, in a separate request for provisional measures. By judgment of 13 January 2011 the Regional Court upheld the appeal, quashed the decisions of 21 January 2010, ordered the Minister to take a fresh decision and rejected the request for a provisional measure. It found, in its relevant part, that the fact Mr X was never mentioned did not lead to the conclusion that the threats were not authorised by him. As the threats were found to be credible the Deputy Minister had given insufficient reasoning why Mr X could not have authorised them. It further held that according to an official report issued by the Minister of Foreign Affairs in January 2010 corruption within the Government was widespread. On 7 February 2011, the Minister for Immigration and Asylum ( Minister voor Immigratie en Asiel ), the successor or the Deputy Minister of Justice, appealed the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ; “the Division”), 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 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. On 18 August 2011 the Division upheld the Minister’s appeal, quashed the judgment of 13 January 2011 and rejected the applicants’ appeal. The Division held that, instead of examining whether the Minister could not reasonably have reached the conclusions as to the credibility of the account, the Regional Court had wrongly drawn its own separate conclusions in relation to various parts of the account. The Division 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 persuasion. Therefore, the applicants had failed to establish a real and personal risk of a violation of Article 3. No further appeal lay against this decision. COMPLAINTS The applicants complain under Article 3 of the Convention that they run a real and personal risk of a treatment contrary to this Article if expelled to Mongolia due to the threats they have received and the source of those threats. Finally, the applicants complain under Article 13 of the Convention that they did not have an effective remedy in Dutch national law in terms of their complaint under Article 3 of the Convention.     QUESTIONS TO THE PARTIES   1. In the light of the applicants’ claims and the documents which have been submitted, would they face a risk of being subjected to treatment in breach of Article 3 of the Convention if they are expelled?   2.     Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3, as required by Article 13 of the Convention?