ECtHR - R.B.A.B. and Others v. The Netherlands, no. 7211/06, 7 June 2016
| Country of applicant: | Sudan |
| Court name: | European Court of Human Rights Third Section |
| Date of decision: | 07-06-2016 |
| Citation: | Application no. 7211/06 |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Female genital mutilation
Description
Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. |
Headnote:
The return of a third country national woman or girl to a country where female genital mutilation is traditionally practised is not a breach of Art. 3 of the Convention where her family (including her possible husband) has the will and the possibility to ensure that she will not be subjected to that practice.
Facts:
The applicants were five Sudanese nationals: a married couple, Mrs R.B.A.B. and Mr. H.S., their two daughters, and their son.
In April 2001, the applicants entered the Netherlands.
Both in 2001 and 2003, Mrs R.B.A.B. and Mr. H.S – and the former also on behalf of her daughters (X and Y), and son (Z) - filed an asylum request based on Mr. H.S.’s alleged participation in the opposition movement “M”. Both times their request was refused by the competent Minister. The first application was considered to be based on vague allegations and therefore lacking credibility; the second application was not based on newly emerged facts or altered circumstances as required by domestic law. Following the first refusal, the applicants also lodged an appeal before the Regional Court which was declared inadmissible.
In June 2005, Mrs R.B.A.B. and Mr. H.S – and the former also on behalf of the other applicants- filed a third asylum request based on the claim that, if they had been sent back to Sudan, their daughters X and Y would be subjected to female genital mutilation (“FGM”), contrary to Article 3 of the Convention, due to tribal and social pressure. The Minister ‘s refusal was appealed by the applicants before the Regional Court, whose decision was subsequently appealed by the Ministry before the Council of State, which finally rejected the applicants’ appeal against the Ministry’s refusal.
In September 2015, the third applicant, Ms X, was granted a Netherlands residence permit for the purpose of remaining with her partner with whom she had already had two children. In the same month she informed the Court that she did not wish to maintain the application in so far as it concerned her.
In 2012 and 2013, the fourth and fifth applicants, Ms Y. and Mr. Z, asked for a residence permit based on the risk of being subjected to FGM, and on his minor age respectively. Nevertheless their requests were rejected.
Decision & reasoning:
The Court found that that the third applicant could be regarded as no longer wishing to pursue her application. Consequently, in accordance with Art. 37.1(a) of the Convention, the Court struck the case out of the list to the extent that it concerned the third applicant.
On the contrary, the Court found admissible the application as brought by the first, second, fourth and fifth applicants; and analysed the merits of these.
By way of premise, the Court recalled that the right to political asylum and the right to a residence permit are not, as such, guaranteed by the Convention. Moreover, the assessment of the correct application of the 1951 Refugee Convention is outside its jurisdiction (arts. 19, 32.1). However, the Court also recalled that expulsion by a contracting State may engage the responsibility of that State under art. 3 of the Convention where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to ill-treatment in the receiving country from intentionally inflicted acts by the public authorities there, or from non-State bodies when the authorities are unable to afford the applicant appropriate protection.
The Court acknowledged that subjecting a person to Female Genital Mutilation (FGM) certainly amounts to treatment proscribed by Article 3 of the Convention (Collins and Akaziebie v. Sweden; Izevbekhai and others v. Ireland); and it found that the crucial issue for the purpose of assessing the applicants’ complaints is whether the fourth applicant would face a real risk of being subjected to FGM upon her return to Sudan. Indeed, the allegations of the first, second and fifth applicants were considered to be all contingent on the risks to the fourth applicant.
The Court found it well-established that in Sudan there is the tradition to subject girls and women to FGM. Nonetheless, through the analysis of national and international reports, the Court found no real risk of the fourth applicant being subjected to FGM at the instigation of persons who are not her family members. In this respect, the Court observed that a law was passed prohibiting FGM in the Sudan province where the applicants came from (South Kordofan); and that apart from the third applicant, it is likely that all the other applicants would be removed together to Sudan since they had not received a residence permit in the Netherlands. Therefore, the third applicant’s family would be in a position to ensure that she is not subjected to FGM. In light of the foregoing, the Court held that the removal of the first, second, fourth and fifth applicants would not give rise to a violation of Art. 3 of the Convention.
Outcome:
The Court decided to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the complaints brought by the third applicant.
The Court held that there would be no violation of Article 3 of the Convention in the event of the removal of the first, second, fourth and fifth applicants to Sudan.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Collins and Akaziebe v Sweden (Application no. 23944/05) |
| ECtHR - Izevbekhai and Others v Ireland (Application no. 43408/08) |
| ECtHR - N v United Kingdom (Application no. 26565/05) |
| ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09 |
| ECtHR - M.A. v. Switzerland, Application no. 52589/13 |
| ECtHR - Khamrakulov v. Russia, Application no. 68894/13, 16 April 2015 |
| ECtHR - Marguš v. Croatia [GC], no. 4455/10 |
| ECtHR - I. v. the Netherlands (dec.), no. 24147/11 |
Other sources:
- Maputo Protocol on 30
- Rule 77 §§ 2 and 3 of the Rules of Court, June 2008
- Article 31 § 3 (c) of the 1969 Vienna Convention
- The official report (ambtsbericht) on Sudan released by the Netherlands Minister of Foreign Affairs in April 2010
- The country assessment report on Sudan drawn up by the Netherlands Minister of Foreign Affairs in July 2015
- The World Health Organisation, Fact Sheet on FGM (as updated in February 2016)
- “Eliminating Female Genital Mutilation: An Interagency Statement”, 2008, authored by various international organisations including the WHO, the UN High Commissioner for Refugees (UNHCR), the UN Children’s Fund (UNICEF) and the UN Development Fund for Women (UNIFEM))
- The United Kingdom Home Office Country of Origin Information, Report on Sudan of 16 April 2010
- The Operational Guidance Note on Sudan released in August 2012 by the United Kingdom Home Office
- “Joint Evaluation of the UNFPA-UNICEF Joint Programme on FGM/C: Accelerating Change 2008–2012” in respect of Sudan, published in July 2013
- The United States Department of State’s “Country Reports on Human Rights Practices 2014”, published on 25 June 2015