CAT/C/63/D/719/2015
entry visas.6 On 19 August 2014, the Office rejected the second asylum application. On 10
September 2014, the complainants filed a judicial appeal and a request for injunctive
measures. On 2 October 2014, Utrecht District Court declared that the appeal was illfounded because the Institute’s report could not be considered to be a new fact and because
there was no “legally justifiable” reason why the complainants could not have presented the
report before the rejection of their first application.
2.6
The complainants submit that a higher appeal to the Council of State would not be
an effective legal remedy due to the Council’s consistent case law regarding the need for a
justifiable, legal reason as to why the complainants did not present medical reports of
torture in the initial application. 7 This jurisprudence shows that a request for the report
following an initial negative decision and the impossibility of procuring a medical report in
the eight-day period of initial application consideration do not constitute legally justified
reasons. 8 The complainants note that an application for appeal will not stay their
deportation and argue that a legal remedy in deportation cases is only effective if it has
“automatic suspensive effect” on deportation procedures.9
The complaint
3.1
The complainants claim that their deportation to Armenia would constitute a
violation by the Netherlands of article 3 of the Convention.
State party’s observations on admissibility
4.1
By note verbale of 20 January 2016, the State party challenged the admissibility of
the complaint on the basis that the complainants failed to exhaust domestic remedies. The
State party notes that Utrecht District Court rejected the complainants’ application for a
judicial review of the Immigration and Naturalization Office’s decision to reject their
second asylum application, and that they did not appeal against that decision before the
Administrative Jurisdiction Division. Therefore, they failed to exhaust available domestic
remedies.
4.2
The State party disputes the claim that an appeal to the Division would have been
ineffective due to the complainants’ failure to provide a legally justified reason as to why
the Netherlands Institute for Human Rights and Medical Research report had not been
submitted during the initial asylum procedure. The State party refers to two judgments in
which the Division considered the question of whether a medical report could alter a prior
decision on an asylum application.10 It also refers to a case where the Division explicitly
states that a medical report submitted in a prior asylum procedure was insufficiently taken
into account when evaluating the risk of violation of article 3 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights). 11 This case law demonstrates that the Division’s decisions are not limited by
6
7
8
9
10
11
Obtained from the Belgian authorities through the Schengen visa consultation network. The
complainants allege that their passports were used as a part of identity theft, and that the burden is on
the State party to further investigate the matter by requesting the photographs and fingerprints
submitted with the visa application to prove that the complainants did, in fact, apply for visas.
See European Court of Human Rights, Salah Sheekh v. the Netherlands (application No. 1948/04),
judgment of 11 January 2007, para. 121, in which the Court concludes that “an applicant cannot be
regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant
domestic case law or other suitable evidence, that an available remedy which he or she has not used
was bound to fail”.
See Anouk Biersteker and Emily Wu, “Medical reports in subsequent asylum applications: does
Dutch law comply with international law?” (Migration Law Clinic, June 2015); and Margarita Fourer
and Julia Smeekes, “Medical reports in subsequent asylum applications: does Dutch law comply with
international law?” (Migration Law Clinic, June 2015).
See European Court of Human Rights, Turgunov v. Russia (application no. 15590/14), judgment of 22
October 2015, para. 36.
See Administrative Jurisdiction Division, ECLI: NL: RVS: 2012: BX0767, judgment of 28 June,
2012 (in Dutch); and ECLI: NL: RVS: 2011: BQ0793, judgment of 14 January 2011 (in Dutch).
See Administrative Jurisdiction Division, ECLI: NL: RVS: 2015: 4068, judgment of 28 December
2015, para. 3.1.
3