European Court of Human Rights

THIRD SECTION

DECISION

Application no. 6864/06
by Illungu TUBAJIKA
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 30 June 2009 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 13 February 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Illungu Tubajika, is a Congolese national who was born in 1975 and currently resides in an unknown location. He was represented before the Court by Ms M. Terpstra, a lawyer practising in Amsterdam. The Dutch Government (“the Government”) were represented by their Deputy Agent, Ms Liselot Egmond, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 14 July 2001 the applicant arrived in the Netherlands where, on 26 July 2001, he applied for asylum. In support of his claim for asylum he submitted the following.

When he was living in the DRC, he was a diamond trader by profession and travelled frequently to neighbouring Angola for his business. On 12 June 2001 five armed men came into his house. The applicant was beaten and the men searched the house and confiscated the applicant’s wallet and identity card, as well as documents relating to the opposition party Union pour la Démocratie et le Progrès Social (hereafter “UDPS”). He was a UDPS sympathiser and had in the past participated in protest marches and had made propaganda for the UDPS.

The applicant was taken to a military camp in Kabungu where he was interrogated. In the camp the applicant learned that his captors were with the intelligence agency Agence Nationale de Renseignements (hereafter “ANR”). He was asked questions concerning the licence of his radio-telephone (which had expired), his trips to Angola and his affiliation to the UDPS. The applicant was severely beaten during the interrogation. The next day the applicant was interrogated and beaten again. The applicant was also made to sign a document before he was returned to his cell.

On 18 June 2001, the applicant was taken to a detention centre in Tshikapa. On 19 June 2001, the applicant had his photograph and fingerprints taken and was made to sign another document. On 21 June 2001, the applicant had managed to escape with the aid of an officer working in the prison.

In an interview with Dutch immigration authorities, the applicant submitted inter alia that he assumed a warrant for his arrest had been issued in view of the seriousness of the accusations against him and because he had escaped.

On 3 September 2002, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) refused the applicant’s asylum application, finding that he had failed to dispel the doubts about the credibility of his account. The Minister further considered that it was unlikely that the applicant had been held in a secret detention facility. Given that the applicant had stated that a warrant for his arrest had been issued containing serious accusations, he would have been detained in a facility that was under the supervision of a public prosecutor, which could not be a secret facility.

On 30 September 2002, the applicant filed an appeal with the Regional Court (Rechtbank) of The Hague, sitting in Haarlem, arguing, in essence, that his account was consistent and detailed and that the Minister had based his rejection on information which the applicant had not actually submitted.

On 18 March 2005, the Regional Court upheld the appeal. It considered that although the applicant had not contested that he had failed to produce any documents, the Minister could not reasonably have concluded that the applicant’s statements about his detention lacked credibility. The Regional Court ordered the Minister to take a new decision.

On 13 April 2005, the Minister appealed against the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State; “the Division”), arguing essentially that it was for the Minister to assess the credibility of the facts submitted by an asylum seeker and that the courts could only examine that assessment with due reticence (terughoudend).

On 14 October 2005, the Division upheld the Minister’s appeal. It quashed the judgment of the Regional Court and substituted it with its own decision on the appeal, holding that the Minister could reasonably have concluded that the applicant’s story lacked positive persuasion.

COMPLAINT

The applicant complained under Article 3 of the Convention that he would face a real risk of being subjected to treatment contrary to that Article if forced to return to his native country.

THE LAW

By letter dated 31 March 2009 the Government informed the Court that they were unable to contact the applicant and that the representative of the applicant had informed them that she was unaware of his current whereabouts.

By faxes of 1 April 2009 and 22 May 2009 Ms Terpstra confirmed to the Court that she had lost contact with the applicant but that she did not see this as a reason to discontinue the proceedings before the Court.

The Court is of the opinion that the applicant’s failure to inform his representative of his current whereabouts must be taken as indicating that he has lost interest in pursuing his application. Although it is true that the applicant did authorise Ms Terpstra to represent him in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of the case. Given the impossibility of establishing any communication with the applicant, the Court considers that Ms Terpstra cannot now meaningfully pursue the proceedings before it (see, mutatis mutandis, Sevgi Erdoğan v. Turkey (striking out), no. 28492/95, 29 April 2003 and Ali v. Switzerland, judgment of 5 August 1998, Reports of Judgments and Decisions 1998-V, p. 2149, § 32).

That being so, the Court finds that further examination of the case is not justified. Consequently, the Court concludes that the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall
Registrar President