European Court of Human Rights

A.S. v. THE NETHERLANDS (European Court of Human Rights)

Last Updated on May 11, 2019 by LawEuro

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 (algemeenambtsbericht) 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 Report of the Panel of Experts, dated 29 October 2009, also documented that it 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’ The report further noted that most cases were ‘… against Darfurians suspected of being linked to the attack against Omdurman on 10 May 2008’. The report went on to quote the findings of the United Nations High Commissioner for Human Rights (OHCHR), report dated 28 November 2008, who observed: ‘[following the JEM attack in May 2008] 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.’ …

22.35  The OHCHR’s report, entitled Tenth Periodic report of the UN High Commissioner for Human Rights on the situation of human rights in the Sudan, dated 28 November 2008, observed:

‘Darfurians in the Khartoum area are at heightened risk of being subjected to arbitrary arrests, in particular if they are suspected of maintaining links with Darfurian rebel groups or political movements. Darfurians may raise the suspicion of the security forces by the mere fact of travelling from other parts of Sudan to Darfur, by having travelled abroad, or by having been in contact with individuals and organizations abroad. Over the past three years, United Nations human rights officers have conducted numerous interviews with Darfurians who have been arbitrarily arrested and detained. Many reported that they were ill-treated and tortured. Reports on the questioning which they underwent in detention indicate that most of the detentions were carried out to obtain information about Darfurian political groups and rebel movements.’ …

22.37  The UN Report of the Panel of Experts, dated 29 October 2009, also reported that it documented specific cases of human rights violations carried out by the National Intelligence Security Services (NISS), which included mistreatment of individuals of Darfurian origin (although ethnicity is not specified as the reason for the ill-treatment in the report).”

33.  The United States (US) State Department’s Country Reports on Human Rights Practices for 2010, issued on 8 April 2011, noted the following in respect of Sudan:

“There were no further developments in the cases of up to 2,500 Darfuris detained by the NISS following the 2008 JEM attack. Most had been released by the end of 2008. According to information in a July Amnesty International report, there may be approximately 200 persons whose whereabouts remained unknown. …

In January antiterrorism courts tried and convicted two additional persons in connection with the 2008 JEM attack on Omdurman, bringing the total number of death sentences in the trials to 106. In trials involving these cases, authorities did not permit defendants access to lawyers before trial, held them incommunicado for up to four months, and reportedly tortured defendants. On February 24, following the signing of the framework agreement with the JEM, the government released 50 of the prisoners sentenced to death in these trials. Reportedly, some persons acquitted by these trials were not released, and authorities rearrested other persons who had been released.”

34.  The US State Department’s Country Reports on Human Rights Practices for 2011, issued on 24 May 2012, states in respect of Sudan:

“The whereabouts of an unknown number of Zaghawa Darfuris detained in Khartoum following the Justice and Equality Movement’s (JEM) attack on Omdurman in 2008 remained unknown.”

35.  In August 2016, a joint report “Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum” was released by the Danish Immigration Service and UK Home Office on joint fact finding missions to Khartoum, Kampala and Nairobi conducted in March 2016. The report focuses on the situation of persons from Darfur and the Two Areas (Southern Kordofan and the Blue Nile State) in Khartoum, including treatment of such persons upon arrival at Khartoum International Airport, treatment by the authorities in Khartoum, prevalence of societal discrimination, and living conditions in Khartoum. Its executive summary reads:

“Sizeable populations from Darfur and the Two Areas reside in Khartoum. There are two main drivers behind the immigration of persons from these areas to Khartoum: the security situation in Khartoum and the socio-economic factors.

Persons with a political profile returning to Sudan may be questioned and/or arrested upon arrival at Khartoum International Airport (KIA) depending on the person’s profile. Seeking asylum abroad would not in itself cause persons from Darfur and the Two Areas problems with the authorities upon return except returnees from Israel. Neither would returnees face severe difficulties with the authorities because of staying abroad for a longer period or travelling with emergency papers. A person’s ethnicity would not generally affect the treatment, he or she would receive on arrival at KIA.

The National Intelligence and Security Service (NISS) acts with impunity. Persons from Darfur and the Two Areas with a political profile are at risk of being targeted by the NISS and its affiliated militias in Khartoum, particularly student activists and persons with an affiliation to rebel groups. The Darfuri and Two Areas communities in Khartoum are monitored by the NISS, principally to identify those with a political profile. Activists at most risk are likely to be those from the Darfuri African tribes of Fur, Masalit and Zaghawa, and persons from the Nuba Mountains.

Persons from Darfur and the Two Areas have access to documents, housing, education and healthcare in Khartoum. However, the quality of these services is low in the poor neighbourhoods surrounding Khartoum where a majority of these persons live. The main factor regarding access to housing and services is the person’s financial resources. There is in practice limited humanitarian assistance provided in Khartoum to those displaced by violence elsewhere in Sudan. Most Darfuris and persons from the Two Areas work in the informal sector as their access to employment in a number of sectors, particularly the public sector, is limited due to discrimination as well as the general adverse economic conditions in Sudan. Those working illegally, for example women selling tea without a licence, are at risk of arrest and prosecution under Public Order laws as well as harassment and extortion by the police.

Persons from Darfur and the Two Areas, and in particular those of African descent, may experience societal discrimination in Khartoum.

It is possible to travel by road and air between Khartoum and Darfur as well as Khartoum and the Two Areas. A person has to go through checkpoints controlled by different actors (the government, rebel groups and local armed groups). Access to certain parts of the Two Areas is restricted.

In general, Khartoum is a safe place for persons fleeing from a private conflict in their local areas. However, the level of security depends on individual circumstances, particularly whether the other party in the conflict has connections with the authorities.”

36.  According to the Swedish Migration Board Country Information Service (Lifos) report of 6 December 2016 on the security situation in Darfur and the situation for internally displaced persons in Khartoum, both the cultural affiliation and the skin colour of a person are of importance in the Sudanese society. Reports from several initiated sources state that people are discriminated against in society because of their ethnicity. Which ethnic group a person belongs to affects the understanding of that person’s political affiliation. Human rights activists, political opponents to the regime, leaders in civil society, students, lawyers and journalists risk intimidations from the authorities. They can be arrested and detained by the NISS without charge or trial. People from some non-Arab groups can be perceived as rebel affiliated and people from Darfur with a political profile, can be at risk also in Khartoum.

37.  The final report of the Panel of Experts on the Sudan established by the UN Security Council pursuant to resolution 1591 (2005), as sent on 9 January 2017 to the President of the Security Council, states amongst other things:

“JEM and … no longer have a significant presence in Darfur as a result of the Government’s effective counter-insurgency strategy. JEM now operates mostly in South Sudan, while…. operates mainly in Libya. These groups are engaged in mercenary activities and, allegedly, in criminal activities in those countries. …”

38.  The United Kingdom Home Office Country Policy and Information Note “Sudan: Non-Arab Darfuris”, released in August 2017, states inter alia as follows:

“3.1.1  The security, human rights and humanitarian situation in Darfur continues to be poor. Non-Arab Darfuris in the Darfur region are likely to face human rights violations which amount to serious harm or persecution.

3.1.2  Existing case law has found that non-Arab Darfuris as an ethnic group are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan, including to Khartoum.

3.1.3  The Home Office view is, however, that there is cogent evidence indicating that non-Arab Darfuris are not generally at risk of persecution or serious harm solely on the grounds of their ethnicity in Khartoum. This evidence provides strong grounds to depart from the existing case law of AA and MM.

3.1.4  Rather, a person’s non-Arab Darfuri ethnicity is likely to be a factor which may bring them to the attention of the state and, depending on other aspects of their profile and activities, may lead to a risk of serious harm or persecution in Khartoum.

3.1.5  Darfuris in Khartoum face discrimination in accessing public services, education and employment, experience forced eviction, societal harassment from other Sudanese, and do not have access to humanitarian assistance. However in general such treatment is not so severe that it is likely to amount to persecution but each case will need to be considered on its individual facts.

3.1.6  All returns are to Khartoum. It will generally be reasonable for a person, including those not previously resident in Khartoum, to return to that city but each case will need to be considered on its individual facts. If the person is able to demonstrate a risk of persecution or serious harm from the state in Khartoum, internal relocation to another part of Sudan will not be reasonable. …

7.1.6  The UK-DIS FFM [the UK Home Office – Danish Immigration Service fact finding missions to Kenya, Uganda and Sudan] report, based on a range of sources, noted:

‘A number of sources stated that they had no information to indicate that failed asylum seekers / returnees from Darfur or the Two Areas would generally experience difficulties on return to Khartoum International Airport (KIA), or they did not consider that claiming asylum overseas would put such a person at risk per se. Western Embassy (C) noted that they had monitored the forced return of two persons from Europe in 2015 and had no reason to believe that they experienced any difficulties or mistreatment, although the source acknowledged that they were not present throughout the arrival procedure. The diplomatic source mentioned that they had experience of a very few rejected asylum seekers being deported from Switzerland and Norway. According to the source it was unclear whether these returnees could get support upon return to Sudan. However the source added that those sent back from Norway had not faced any problems upon return. …’ …

7.1.10  The British Embassy in Khartoum observed in September 2016: ‘As reported in our letter of February 2015 … it remains the case that neither we nor our international partners are aware of substantiated cases of returnees, including failed asylum seekers, being mistreated on return to Sudan.’ …”

COMPLAINTS

39.  The applicant complains that his removal to Sudan would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention and that he has not had an effective remedy as guaranteed by Article 13 in respect of that complaint.

THE LAW

40.  The applicant complained that his removal to Sudan would be contrary to his rights under Article 3 of the Convention. This provision reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties’ submissions

1.  The Government

41.  The Government, referring to the applicable general principles under the Court’s case-law under Article 3, contested the argument that the applicant, if expelled, would be exposed to a real risk of being subjected to treatment contrary to Article 3. According to the Government, the general security situation in Sudan and in Khartoum in particular is not so poor that returning the applicant to Sudan would in itself constitute a violation of Article 3. They further pointed out that the applicant had not raised a claim to this effect in his application to the Court.

42.  As regards the applicant’s personal situation, an assessment must be made on the basis of the applicant’s asylum statement against the backdrop of the general situation in Sudan. On this point the Government emphasised that it is for the applicant to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3.

43.  The Government contended that the applicant had failed to establish in a plausible manner that he will be subjected to treatment contrary to Article 3, not only taking into account his failure to provide any documents in support of his identity, nationality and travel route, but also his failure to provide any documents in support of his asylum statement, his inability to give detailed, coherent and verifiable statements about his journey from Sudan to the Netherlands and his vague, cursory and implausible statements about his arrest, detention, ill-treatment and absconding. Consequently, the Government considered it implausible that the applicant would have fled Sudan due to fear of treatment contrary to Article 3. As regards the MOG report of 27 January 2012, the Government submitted that this report is not enough to make the applicant’s asylum statement plausible and it does not give strong indications that the applicant’s scars and injuries were caused by ill-treatment or torture. On this point, they emphasise that it is significant that the scale of gradations used in this report to assess the degree of consistency between the applicant’s medical complaints and his asylum statement about the causes thereof leave scope for many other causes rather than torture or ill-treatment. This report did not warrant a further investigation by the Government into the applicant’s scars and injuries since he had not made a prima facie case with respect to the possible causes of those scars and injuries.

44.  The Government were therefore of the opinion that the applicant had not demonstrated the existence of a real and foreseeable risk that he, if removed to Sudan, would be subjected to treatment in breach of Article 3 either on grounds of individual circumstances or as a member of a vulnerable minority.

2.  The applicant

45.  The applicant submitted that he risked treatment in breach of Article 3 in Sudan for belonging to the ethnic group of non-Arab Gimr from Darfur and explained that he had been born in an illegal settlement in the vicinity of Khartoum of parents originating from West-Darfur. The Sudanese Government had destroyed this settlement around 2004/2005, using bulldozers. However, its residents – including the applicant and his nuclear/extended family – had returned later. He claimed that the mere fact of his Darfur origin was already sufficient for running the risk of being arrested and persecuted.

46.  The applicant further submitted that he had given an extensive and detailed statement about his arrest, torture and interrogation as a suspect of being a member of the rebel group which the Sudanese authorities held responsible for the attack in Omdurman in May 2010. He considered the position adopted by the Netherlands authorities about the credibility of his asylum statement – which found support in various general reports covering the period at issue – inexplicable and incomprehensible. In the applicant’s opinion, his asylum statement had been incorrectly found to lack credibility and the Dutch authorities had unjustly failed to give weight to the MOG report. According to the applicant, it followed from the Court’s judgment in the case of R.C. v. Sweden (no. 41827/07, 9 March 2010) that it is not required that there is a very high degree of consistency between a person’s overall pattern of lesions and the attribution given by that person before a medical report can be given probative value. As the medical report at least provided strong indications that the applicant’s scars and injuries may have been caused by ill-treatment or torture, the Netherlands immigration authorities ought to have directed that an expert opinion be obtained.

47.  The applicant lastly submitted that, although his statements were modest in nature as befits his origins, his complete lack of schooling and his inability to read and write, they were per se consistent and coherent and matched publicly available sources. He argued that, in these circumstances, he should be given the benefit of the doubt.

B.  The Court’s assessment

1.  General principles

48.  The applicable general principles are set out in, inter alia,Saadi v. Italy ([GC], no. 37201/06, §§ 128‑33, ECHR 2008);R.C. v. Sweden (cited above, §§ 48-51 with further references);F.G. v. Sweden ([GC], no. 43611/11, §§ 117-27 with further references, 23 March 2016);J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 79-90 with further references, 23 August 2016);N.A. v. Switzerland (no. 50364/14, §§ 41‑42 with further references, 30 May 2017); and A.I. v. Switzerland (no. 23378/15, §§ 48-49 with further references, 30 May 2017).

2.  Application of the general principles to the present case

49.  The issue before the Court is whether the applicant, upon return to his country of origin, would face a real risk of being tortured or subjected to inhuman or degrading treatment or punishment as prohibited by Article 3 of the Convention.

50.  Since the applicant in the instant case has not been deported – as a result of the indication by the Court of an interim measure under Rule 39 of the Rules of Court (see paragraph 22 above) – the material point in time for the assessment of the claimed Article 3 risk is that of the Court’s consideration of the case (see Saadi, cited above, § 133). The Court will make a full and ex nunc evaluation where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken (see, for example, Maslov v. Austria [GC], no. 1638/03, §§ 87-95, ECHR 2008, and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 215, 28 June 2011).

51.  In examining this matter, the Court would reiterate at the outset its considerations in respect of the general situation in Sudan as set out in the recent judgments of N.A. v. Switzerland (cited above, § 43) and A.I. v. Switzerland (cited above, § 50).

52.  In addition, the Court observes that it appears from various international reports that, directly after the attack on Omdurman in May 2008 attributed to the JEM, the Sudanese authorities arrested hundreds of persons most of whom of ethnic Darfuri origin. Several reports also mention that many of these persons were ill-treated during detention and that, in the course of 2009, special anti-terrorism courts tried and convicted several hundred suspects in connection with the May 2008 attack on Omdurman. The Court further notes that, in the context of the cease-fire agreement concluded between the JEM and the Sudanese government in the spring of 2010, many detained JEM suspects were released (see paragraphs 31-32 above). On the basis of the materials before it, the Court finds that the general situation in Sudan, in particular in Khartoum, is not of such an extreme violent nature as to entail, on its own, that any removal to it of a Sudanese national would necessarily be in breach of the Convention. The Court therefore has to establish whether the applicant’s personal situation is such that his return would contravene Article 3 of the Convention.

53.  In so far as the applicant claims a risk of treatment prohibited by Article 3 on account of his non-Arab ethnic origin, the Court observes – having regard to various recent international reports on the situation in the Khartoum region for persons having a non-Arab origin (see paragraphs 35‑38 above) – that the situation for such persons is certainly not ideal and that they may risk falling victim to social discrimination. However, the Court cannot find that this situation must be regarded as being so harrowing that it must be concluded that people of non-Arab origin are at risk of persecution or serious harm in Khartoum, solely on the ground of their ethnicity. It must therefore be established whether also other risk factors are at stake.

54.  The applicant’s claims of having been arrested, detained and convicted on the basis of suspected involvement with the JEM, his escape from prison and the manner in which he fled from Sudan to the Netherlands were disbelieved by the domestic administrative and judicial authorities after an extensive investigation and on rational grounds that the Court has no reason to doubt. In this respect the Court notes that the applicant’s case was examined on the merits by the Minister for Immigration, Integration and Asylum Policy, on whose behalf two interviews were conducted with the applicant, and by the Regional Court, which held an oral hearing. Moreover, the Administrative Jurisdiction Division considered the applicant’s further appeal but found no grounds to overturn the judgment of the Regional Court of The Hague. The Court also notes that the applicant was assisted by a lawyer throughout the proceedings.

55.  The Court further has found no concrete indication in the contents of the case file indicating a negative interest of the authorities of Sudan in the applicant, either at the material time or currently. There is nothing indicating that these authorities have ever taken any concrete steps aimed at finding out the applicant’s whereabouts after he had allegedly escaped from prison.

56.  Finally, the Court notes that, unlike the situation in the cases of N.A. v. Switzerland and A.I. v. Switzerland (both cited above), there is no evidence before the Court that the applicant would have been involved in any Sudanese political opposition activities or group abroad and for this reason would have to fear ill-treatment upon his return to Sudan.

57.  In these circumstances, the Court cannot but conclude that the applicant failed to adduce evidence capable of demonstrating that there are substantial grounds for believing that he, if removed to Sudan, would face a real risk being subjected to treatment in breach of Article 3 of the Convention.

58.  It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

59.  The applicant further complained under Article 13, arguing that he did not have an effective remedy for his complaint under Article 3. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

60.  It is the Court’s constant case-law that Article 13 requires a remedy in domestic law to be available in respect only of such grievances as are “arguable” in terms of the Convention (see, for instance, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52, and Ali and Others v. Switzerland (dec.), no 30474/14, § 49 with further references, 4 October 2016). In view of its findings above, the Court does not consider that an arguable claim has been established under Article 3 of the Convention.

61.  Consequently this complaint too is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

62.  In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 December 2018.

Fatoş Aracı                                                       Dmitry Dedov
Deputy Registrar                                                      President

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