CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 1 juin 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sC9AE5FA8 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } 444 01.06.2010   Press release issued by the Registrar   Chamber judgment [1]   Mawaka v. The Netherlands (application no. 29031/04)     EXPULSION FROM THE NETHERLANDS TO THE DEMOCRATIC REPUBLIC OF THE CONGO WOULD NOT VIOLATE THE CONVENTION   Unanimously   No violation of Article 3 (prohibition of inhuman treatment and punishment) No violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.     Principal facts   The applicant, Sita Mawaka, is a national of the Democratic Republic of the Congo (“the   DRC”) who was born in 1969 and lives in Rotterdam.   He lived in Belgium starting from September 1992 till January 1994 when he returned to the DRC (then called Zaire) and started working as the personal secretary of a prominent opposition member. In October 1994, Mr Mawaka was contacted by unknown men asking for his assistance in killing his boss. The applicant refused. A few weeks later, Mr Mawaka’s boss disappeared, was later found beaten and unconscious, and died in a local hospital.   Mr Mawaka was arrested in November the same year, allegedly because he had refused to kill his boss. He was never shown an arrest warrant. Threatened and beaten, he managed to escape from detention with the assistance of a guard from the same tribe as himself. Having hidden in the guard’s home until 6 January 1995, he flew to Belgium and was then driven to the Netherlands where he requested asylum.   In July 1996, Mr Mawaka was first granted a residence permit for the purposes of asylum since there were sufficient grounds to believe that he would be persecuted should he return to the DRC. He married a Congolese national in the Netherlands with whom he had a son.   In November 2001, Mr Mawaka was informed in writing that his residence permit would be revoked given that he had been criminally convicted in Belgium in January 1997 and that, if that offence were committed in the Netherlands, he would have been sentenced to 10   months’ imprisonment there. The letter he was sent by the Deputy Minister of Justice also concluded that there had been inconsistencies in Mr Mawaka’s story when he had requested asylum and that he no longer risked persecution in his country of origin, among others, since the regime there had changed. In July 2002 a decision was issued revoking his residence permit, which he appealed in court, unsuccessfully.   Mr Mawaka currently lives in the Netherlands and has since divorced his wife but continues to visit her and their child frequently.     Complaints, procedure and composition of the Court   Relying on Articles 3 and   8, Mr Mawaka complained that if expelled to the DRC, he would run a real risk of being ill-treated and his family life would suffer.   The application was lodged with the European Court of Human Rights on 10   August   2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), Alvina Gyulumyan (Armenia), Egbert Myjer (the Netherlands), Ann Power (Ireland), judges ,   and Stanley Naismith , Deputy Section Registrar .     Decision of the Court   Risk of ill-treatment (Article 3)   The Court first noted, with reference to reports presented by the United Nations, the US   Department of State, Freedom House and the UK Home Office, that the general situation in the DRC at present certainly gave cause for concern. The circumstances in the North ‑ East provinces were particularly dire. However, Mr Mawaka had resided in Kinshasa before leaving the DRC. There was thus no reason to assume that, if he returned, he would be expelled to the North-Eastern part of that country. In addition, no evidence had been adduced by the applicant showing that the situation in the DRC was one of such extreme general violence that he would face a real risk of ill-treatment merely by his presence in that country.   As regards the personal risk for the applicant in view of his past activities in the DRC, the Court noted that a long time had elapsed since he had fled and that he had not attracted additional negative attention from the DRC authorities in the meantime. Further, the Dutch authorities had made an assessment of the risk of ill-treatment when they revoked his residence permit. Consequently, the Court concluded that no evidence had been presented showing that Mr Mawaka would face a real and personal risk upon his return to the DRC. Accordingly, there would be no violation of Article 3 if Mr Mawaka were expelled to his country of origin.   Family life (Article 8)   The Court recalled that the Convention did not guarantee the right of an alien to enter or to reside in a particular country. It then noted that the mother of Mr Mawaka’s son had not brought proceedings concerning her residence status or that of her son. Therefore, given that neither she, nor their son, had a legal entitlement to reside in the Netherlands, they might be required to leave the country too.   Consequently, there had been no violation of Article 8.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) or Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.       [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.