CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 avril 2013

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s750DB8D0 { margin-top:30pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s28AF21C3 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .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 } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } THIRD SECTION Application no. 10944/13 P.N. against the Netherlands lodged on 4 February 2013 STATEMENT OF FACTS     1.     The applicant, Mr P.N., is a Rwandan national, who was born in 1985 and lives in Delfzijl. He is represented before the Court by Ms   A.M.J.M.   Louwerse, a lawyer practising in Amsterdam. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant came to the Netherlands in 2000 when he was a minor. He applied for asylum in 2001. On 8 May 2002 the Deputy Minister of Justice ( staatssecretaris van Justitie ) denied the request because the applicant’s accounts did not show that there would be a real risk of treatment contrary to Article 3 upon his return to Rwanda. The Deputy Minister, on her own accord, also refused a residence permit on the ground that the applicant was an unaccompanied minor, because he had come to the Netherlands with his older sister. The appeal was declared inadmissible by the Regional Court ( rechtbank ) of The Hague on 6 September 2002 as no grounds for the appeal had been submitted in time. 4.     On 29 July 2003 the applicant asked the Minister for Immigration and Integration ( minister voor Vreemdelingenzaken en Integratie ; the successor to the Deputy Minister of Justice) to use her discretionary powers to grant a residence permit. The Minister did not. The applicant lodged an objection, but the Minister declared the objection inadmissible on 22 September 2004, since no objection lay against a decision not to use discretionary powers. 5.     On 15 March 2004 the applicant applied for a regular residence permit on humanitarian grounds. 6.     On 1 February 2005 the Regional Court of The Hague, sitting in Arnhem, quashed the Minister’s decision of 22 September 2004 and ordered her to take a new decision. It decided that the applicant’s request of 29 July 2003 should be interpreted as a request for asylum and for a residence permit on humanitarian grounds. 7.     On 28 June 2005 the applicant was placed in a psychiatric hospital, because of his unwillingness to accept treatment voluntarily and because it was deemed that, without treatment, he would become a danger to himself due to psychoses. He had already been placed in a custodial setting twice in 2004. 8.     On 2 November 2005, the Medical Assessment Section ( Bureau Medische Advisering , “BMA”) of the Ministry of Justice drew up an advisory report on the applicant’s (mental) health condition. It states the following: “[The applicant] suffers from psychiatric problems, namely paranoid schizophrenia, and has been placed in a custodial setting on several occasions because he did not take his medication. [The applicant] will probably need lifelong treatment. There are next to no therapy possibilities in Rwanda and there is no psychiatric treatment available. Also, the one type of anti-psychotic drug that is sold in Rwanda is not always in supply. If [the applicant] were to be deported to a country where treatment is not immediately available, it is expected that a medical emergency situation will arise in the short term.” 9.     On 21 September 2006 the applicant was convicted of sex crimes and sentenced to twelve months’ imprisonment. 10.     The Minister requested a new advice on 24 November 2006 since an essential question had not been put to the BMA and as a consequence no decision could be taken yet. 11.     On 5 March 2007 the BMA issued a new advisory report. It states the following: “[The applicant] does not recognise the need for taking medication, but if he fails to take them he becomes psychotic and severely disorganised. The treatment will probably have to be life long. Therapy possibilities in Rwanda are almost non-existent. There is no possibility of psychiatric care. If [the applicant] does not take his medication, the symptoms will increase immediately with a chance of severe decompensation. [The applicant] can only travel to a country where the treatment can be continued immediately. If he goes to a country where the treatment cannot be immediately continued, it is expected that a medical emergency situation will arise in the short term. [The applicant’s] psychiatric problems are incurable, but, with treatment, not life-threatening.” 12.     On 19 March 2007 the Deputy Minister of Justice (the successor to the Minister for Immigration and Integration) rejected the objection against the Minister’s refusal to use her discretionary powers to grant a residence permit on humanitarian grounds, stating that a return would be hard to realise having regard to the applicant’s psychiatric problems but that his conviction tipped the scale to his detriment. 13.     On 13 February 2008 the Deputy Minister denied the applicant’s asylum request of 23 July 2003 because he did not find himself in the advanced stages of a terminal and incurable illness and because he had been convicted. 14.     On 26 June 2008 the Regional Court of The Hague, sitting in Amsterdam, rejected the applicant’s appeal against the decision of 19 March 2007. The applicant did not appeal this decision. 15.     On 13 October 2008 the Deputy Minister informed the applicant that the decision of 13 February 2008 had been revoked and that a new decision would be taken. 16.     On 25 February 2009 the BMA issued a new advisory report. It states the following: “[The applicant] suffers from paranoid schizophrenia and auditory hallucinations. The psychiatric disorder is incurable, but he does not find himself in a life-threatening stage of his illness. If he does not take medication or is not treated, he will become confused and scared. His sense of reality, already limited, will continue to decrease, leading to an increase in auditory hallucinations etc. Even though his history does not show a tendency to become violent towards himself or others, this will become a serious threat if he does not receive treatment. A medical emergency situation will arise in the short term. Non-treatment will not immediately lead to an irreversible process that will lead to [the applicant’s] death, but it cannot be predicted how [the applicant] will behave and act in the future. [The applicant] will have to be accompanied to Rwanda by a psychiatric nurse and after arrival immediately handed over to a local person treating psychiatric disorders, because, due to his illness, he is insufficiently capable of contacting one himself or to realise the necessity thereof. There are therapy possibilities in Rwanda, with the possibility of hospitalisation. The medication [the applicant] uses is available in Rwanda.” 17.     On 20 April 2009 the applicant’s psychiatrist sent applicant’s counsel a letter in which he stated the following: “If medical treatment is not continued [the applicant] will quite quickly only live in his paranoid world. The hallucinations of schizophrenic people are reality to them, as are their delusions. If a schizophrenic person hallucinates that he is being tortured, it is just as real as being actually tortured.” 18.     On 14 July 2009 the Deputy Minister again denied the applicant’s asylum request of 23 July 2003, stating that the applicant did not find himself in the advanced stages of a terminal and incurable illness and that he had been convicted. Moreover it appeared from the latest BMA advisory report that there were treatment possibilities in Rwanda and that the applicant’s claim that he would be in danger of revenge or risked detention if he became a danger to third parties, was largely speculative. The applicant’s claim under Article 8 could not be taken into account, since the current proceedings concerned an asylum request. The Deputy Minister further held that if decisions had been taken timely and policy changes been taken into account, the applicant would have been given a residence permit on the ground of stay as a minor asylum seeker. However, that residence permit would have expired on 12 October 2003, the day he turned 18, and been extended by one year. The applicant would not have been granted a permit for continued residence on 12 October 2004, since he had committed his first offence on 2 April 2004. 19.     In November 2009 the applicant was declared missing by his sister. He was found in Brussels in a confused state of mind and committed to a psychiatric institution. 20.     The Regional Court of The Hague quashed the decision of 14 July 2009 on 8 June 2011 with reference to the BMA advisory reports. It held that it appeared from these reports that the applicant would become a danger to himself and that, while it appeared that there were treatment possibilities in Rwanda, it did not appear that those treatment facilities would be available to the applicant. 21.     The Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State , “the Division”) quashed the Regional Court’s decision on 15 January 2013, holding that the applicant did not find himself in a life-threatening stage of his illness, that there were treatment possibilities in Rwanda and that non-treatment would not lead to an irreversible process leading to the applicant’s death. COMPLAINTS 22.     Upon return to Rwanda the applicant fears that he will die and/or fall victim to treatment contrary to Article 3 of the Convention. During his stay in the Netherlands he has been receiving constant care for his severe psychiatric problems and has been placed in a custodial setting on several occasions because he does not recognise the necessity of undergoing treatment and/or taking medication. He claims that in Rwanda no forced treatment settings are available and that, if he is not treated, he will suffer gravely because of his hallucinations. He further claims that the BMA told him that in the absence of treatment a life-threatening situation would arise. In addition he might become a danger to others, putting him at risk of arrest and detention, with a subsequent risk of torture and deprivation of medical care, and possibly revenge against him by his victims. In addition, he no longer has a social network in Rwanda; his parents are dead, his two sisters are living in Europe and he has been living outside of Rwanda for the past 13 years. 23.     The applicant claims under Article 13 of the Convention read in conjunction with Article 3 of the Convention that the proceedings before the Division did not provide an effective remedy, because that tribunal is not sufficiently objective and impartial and quashed the Regional Court’s decision without even hearing him. 24.     The applicant further claims under Article 8 that the domestic authorities violate his right to respect for his private life, since he has been living in the Netherlands for 13 years and since the interests of the Netherlands in his departure are not great, as is illustrated by the fact that they took 13 years to decide on his asylum request. Also, had the authorities granted him asylum in 2003, he would have been naturalised in 2008. In addition he has no social support in Rwanda. 25.     The applicant claims under Article 13 of the Convention read in conjunction with Article 8 of the Convention that the national courts have not judged on his claims under Article 8.   QUESTIONS 1.     In the light of the applicant’s claims and the documents which have been submitted, would he face a risk of being subjected to treatment in breach of Article 3 of the Convention if he were expelled to Rwanda?   2.     Having regard to the short and long-term consequences if the applicant does not receive his medication and/or treatment as described in the BMA advisory reports of 2 November 2005, 5 March 2007 and 25   February 2009, would a situation in breach of Article 3 situation arise in case the applicant did not have access to medication and/or treatment in Rwanda?   3.     What arrangements, if any, have been made for the applicant’s return journey to Rwanda?   4.     What arrangements, if any, have been or will be made for the applicant in Rwanda and, in particular, for the immediate continuation of his treatment as advised by BMA?   5a.     Will the applicant continue to receive the treatment he needs in Rwanda, having regard to the fact that according to the BMA advisory report of 25 February 2009 only two treatment facilities are available and that from the earlier BMA reports (2 November 2005 and 5 March 2007) it appeared that next to no therapy possibilities and no psychiatric treatment was available in Rwanda? 5b.     Were the treatment facilities referred to in the BMA advice of 25   February 2009 new? 5c.     If they already existed in 2005/2007, what accounts for the difference in the conclusions drawn? 5d.     Is there a possibility of the applicant being placed in one of the facilities against his will?   6.     Will the applicant continue to receive the medication he needs, having regard to the fact that according to the BMA advisory report of 2   November 2005 the one type of anti-psychotic drug that was sold in Rwanda was not always in supply and that according to the information of SOS International on which the BMA advisory report of 25 February 2009 was based stated that medication was currently in supply?