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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 22 July 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1.1 The author of the communication is Arusjak Chadzjian, an Armenian
national, born on 1 August 1955, who has submitted the communication on her
own behalf and on behalf of her children, Sarine, Meline and Edgar Barsegian
born in 1989, 1990 and 1993, respectively. She claims that her deportation
to Armenia with her children would violate their rights under articles 7,
14, 17, 23 and 24 of the International Covenant on Civil and Political
Rights. The author is represented by counsel, Mr. Michel Arnold Collet.
1.2 On 12 December 2006, the Special Rapporteur for New Communications,
acting on behalf of the Committee, confirmed to the State party that the
admissibility of this case would not be considered separately from the
merits.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 The author's husband, Zjora Basegian, born on 8 December 1950, had
actively participated in the Nagorno-Karabakh conflict. After the conflict,
foreign aid did not reach the localpeople and was diverted by the local
authorities. The author's husband, together with two friends and a Member of
Parliament, Armenak Armenakian, wrote letters to foreign aid agencies
claiming that aid was being used for private matters by Parliament. Armenak
Armenakian was shot dead on 27 October 1999 together with several other
members of Parliament.
2.2 The author's husband was continuously harassed by "henchmen" of
President Kotsjarian, but continued to make similar claims in letters to
foreign aid agencies. On 24 May 2002, the author's husband came back home
from work, took some documents and left the house, saying that he would be
gone for two days. A couple of hours later, two men came to the house
looking for him and left. They came back the next day and assaulted the
author. They searched the house and found a letter which they took. They
also threatened to kill her. From several remarks made by the men, the
author concluded that they were President Kotsjarian's "henchmen". They took
the author to the police station where she was accused of having
collaborated with her husband by writing the letter in question. She was
assaulted, threatened and raped by the two men.
2.3 On 28 May 2002, some friends of the author's husband came to pick her up
at the police station and told her that her husband had been killed the day
before and that their house had been set on fire. Together with her children
and these friends, the author left the country on the same day. On 6 June
2002, she and her children arrived in the Netherlands where she reported to
the authorities.
2.4 On 13 June 2002, the author and her children applied for asylum. On 17
September 2002, the Immigration and Naturalisation Department (IND) rejected
the application. On 10 October 2002, the author appealed and the IND
decision was withdrawn on 14 August 2003. The Dutch Foreign Affairs
Department issued a report on the author's case on 19 March 2003. On 13 May
2004, the IND issued a second negative decision on the author's application.
On 4 June 2004, the author appealed the decision and on 25 August 2005, the
Court of The Hague residing in Groningen rejected her appeal. The author
appealed the decision and on 18 January 2006, the Council of State, the
highest court in immigration affairs, rejected her appeal.
THE COMPLAINT
3.1 The author argues that the IND decision is solely based on the report of
the Foreign Ministry and the lack of identity papers. This led the IND to
conclude that the author's account was not credible and to dismiss the
application without examining the merits. She refers to a case in which the
European Court of Human Rights ruled on admissibility that an account of an
asylum seeker cannot immediately be deemed as unbelievable if the story at
first hand seems logical [FN1]. Subsequently, the European Court found on
the merits [FN2] a violation of article 3 of the European Convention of
Human Rights which is, according to the author, comparable to article 7 of
the Covenant. She argues that sending her and her children back to Armenia
would constitute a violation of article 7 of the Covenant. She further
claims that sending them back would also constitute a violation of article
23, as the State party would violate its duty to protect family life. It
would further also constitute an interference with the private life of the
family and constitute a violation of article 17.
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[FN1] See Said against the Netherlands, application No. 2345/02, decision of
5 October 2004
[FN2] See Said against the Netherlands, application No. 2345/02, judgment of
5 July 2005, at para. 51
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3.2 The author further claims a violation of article 14, because the IND
decision was mostly based on the report of the Foreign Ministry, which is
considered as an expert opinion. Details of the individuals who provided the
information for the report are kept confidential, which the author regards
as understandable, but leads to an unfair situation, as the author cannot
challenge the credibility of the report. The IND simply sent a letter on 25
March 2004 to the Foreign Ministry, stating that it had seen the background
information which forms the basis of the report, and concluded that the
preparation of the report had been correct and just. This statement cannot
be verified since the background information is not available publicly.
There is no remedy and the author has not had a "fair trial". According to
the author, the report is based on statements made by "(scared) inhabitants
of the area and of a Government agency that is part of a regime of which
Chadzjian fled from in the first place" (sic).
3.3 Finally, the author claims a violation of article 24. Her children are
young and they have been living in the Netherlands for four years, have
learnt Dutch and are integrated into Dutch society. They have no close
connection with Armenia. Sending them back would not be in their best
interests. According to the author, this has not been taken into account by
the IND.
ADDITIONAL INFORMATION FROM THE AUTHOR
4. The author submitted medical evidence on 26 July 2006 from a doctor and a
psychologist. The doctor's medical report, dated 28 November 2005, concluded
that the author needs medical treatment which is very unlikely to be found
in Armenia and that, apart from her fear of death, it is anticipated that
her health will deteriorate rapidly after a forced return. The psychiatric
report, dated 6 July 2005, states that the author is suffering from
post-traumatic stress disorder (PTSD) because of what happened to her in
Armenia, but also because of the anxiety linked to her impending expulsion.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
5.1 On 1 December 2006, the State party challenged the admissibility of the
communication. With regard to the allegations in respect of article 7, that
the Dutch authorities were wrong in failing to examine the author's asylum
application on its merits because they deemed it to be implausible, and with
regard to the alleged violation of article 14, the State party argues that
the Dutch authorities carefully investigated the author's asylum
application. Her account in support of her asylum application was heard
twice on 13 June 2002 and 8 July 2002. An investigation in Armenia was
initiated by the Ministry of Foreign Affairs on the basis of the author's
statements, the results of which are set out in the report itself. The State
party contends that it was only after a careful investigation that the
author's account was declared implausible, the author having failed to
provide any documentation substantiating her identity, her nationality or
her reasons for requesting asylum. There was therefore no reason to examine
the merits of the application. The State party further contends that the
European Court of Human Rights' findings in the case of Said v. the
Netherlands does not suggest otherwise. In this case, the European Court
took into account the author's persuasive argument rebutting the
Government's claim that his account lacked credibility [FN3]. No comparable
situation exists in the case under consideration. The official report
indicates that the investigation in Armenia found no evidence to support the
author's account, including her claims that her house had burnt down, and
that neither the authorities nor her alleged neighbours knew of anyone of
her identity at the home address she gave. The State party adds that the
author did not provide any objective evidence that the information in the
official report was unreliable. In light of the above, the author's claims
under article 7 and 14 are inadmissible on the grounds that they are not
sufficiently substantiated.
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[FN3] Application No. 2345/05, para. 51
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5.2 With regard to the alleged violation of article 14, the State party
further points out that the author was given, at her request, copies of the
documents underlying the official report. Information concerning the sources
and methods of investigation were omitted pursuant to a decision taken in
conformity with section 10, subsection 2 of the Government Information
(Public Access) Act, which allows information to be withheld for various
reasons, including protection of sources and of investigative methods and
techniques. The State party notes that the author did not exercise her right
to ask an independent court to assess the legitimacy of the decision to
withhold information concerning investigative sources and methods. It
therefore concludes that the author failed to exhaust domestic remedies, as
required by article 5, paragraph 2 (b) of the Optional Protocol.
5.3 The State party takes note of the additional information provided by the
author on 26 July 2006, by which the author claims that she requires medical
treatment unlikely to be available in Armenia, and that her health will
deteriorate rapidly without such medication. It interprets this as a claim
that due to the author's medical condition, there is a real risk that her
rights under article 7 will be violated if she is forcibly expelled to
Armenia. With regard to this claim, as well as the claims under articles 17
and 23, the State party notes that the author has not brought any of these
matters before the domestic courts and that, as a consequence, the State
party was denied the opportunity to respond to them. The State party
concludes therefore that these aspects of the communication are inadmissible
under article 5, paragraph 2 (b) of the Optional Protocol for non-exhaustion
of domestic remedies.
5.4 Similarly, the State party submits that the claims under article 24 were
not brought before the domestic courts. The author's only contention during
the domestic proceedings was that by finding her account of events
implausible and thus not evaluating it on the merits, the Dutch authorities
risk exposing her children to danger in Armenia. These claims are therefore
inadmissible under article 5, paragraph 2 (b), of the Optional Protocol for
failure to exhaust domestic remedies.
5.5 In its observations dated 27 March 2007, the State party indicated that
its observations on admissibility may be regarded as equally pertaining to
the merits of the communication.
Author's comments on the State party's submissions on admissibility and
merits 6.1 In her comments dated 2 May 2007, the author responds to some
aspects of the State party's submissions. She reiterates that she had to
flee Armenia with her children after her husband and the father of her
children was shot dead and their house burn down by the Armenian
authorities. This explains why she arrived without her documents. The
explanation why no-one in the neighborhood, nor the Armenian authorities,
said anything to the Dutch authorities investigating the case in Armenia can
be explained by the author's and her children's background, as associated
with her husbands political activities. She further contends that by
applying Dutch standards to this investigation, the State party arrived at
the wrong conclusions. Those conclusions, which were used to deny the author
a decision on the merits of her asylum claim, will lead to a violation of
article 7 should the author and her children be returned to Armenia.
6.2 Regarding the State party's argument that the author did not take
advantage of the opportunity to ask an independent court to assess the
legitimacy of the decision to withhold information concerning investigative
sources and methods, the author submits that this procedure would not be
effective, as there is no possibility for an asylum seeker to obtain more
information. The author further submits that asylum proceedings, in which
the investigation conducted by Dutch authorities in Armenia played an
important role, have been exhausted which, by itself, is enough for
admissibility of the communication.
6.3 In support of her claim under article 24, the author reiterates that
sending her children back to Armenia would put them in danger. She claims
that she raised this argument several times throughout the proceedings, and
refers to the Committee's jurisprudence in which it held that the children's
interests were of primary importance [FN4].
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[FN4] See Communication No. 930/2000, Hendrick Winata and So Lan Li v.
Australia, views adopted on 16 August 2001, at para. 7.3; Communication No.
1069/2002, Ali Aqsar Bakhtiyari and Roqaiha Bakhtiyari v. Australia, views
adopted on 6 November 2003, at para. 5.15 and 9.7
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ADDITIONAL SUBMISSIONS BY THE AUTHOR
7.1 On 7 February 2008, the author provided the Committee with a summary of
the Dutch ombudsman's report concerning reports by the Ministry of Foreign
Affairs based on investigations conducted in the countries of origin of
asylum seekers. According to the ombudsman's report, the reliability of
these investigations has decreased and it is unrealistic to expect from
people interrogated that they will report what they know since those people
are enemies of the state they still live in. The author argues therefore
that the State party's authorities should not have based their decision not
to examine the author's asylum claim on the merits on such unreliable
investigations.
7.2 By letter of 18 February 2008, the author submitted drawings by her
children, which she claims represents in detail the neighbourhood they used
to live in Armenia. She argues that those maps establish the veracity of her
account and that, combined with the information provided on 7 February 2008,
demonstrate that the investigation carried out by the State party's
authorities are not trustworthy.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
8.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
8.2 The Committee notes that the State party challenges the admissibility of
the entire communication. With regard to the author's claim under article 7,
the Committee recalls that States parties are under an obligation not to
expose individuals to a real risk of being subjected to torture or cruel,
inhuman or degrading treatment or punishment upon entering another country
by way of their extradition, expulsion or refoulement [FN5]. It notes that
the IND considered and rejected the author's asylum application for lack of
credibility on two occasions, on the second occasion after having received
the findings of an investigation that its authorities had undertaken in
Armenia itself. If further notes that the author's appeal was considered and
rejected by the Court of the Hague residing in Groningen and then
subsequently rejected by the "Raad van State", the Highest Administrative
Court of the Netherlands. The Committee recalls its jurisprudence that it is
generally for the courts of States parties to the Covenant to evaluate facts
and evidence in a particular case, unless it is found that the evaluation
was clearly arbitrary or amounted to a denial of justice [FN6]. It also
recalls that the same jurisprudence has been applied to removal proceedings
[FN7]. The material before the Committee is insufficient to show that the
proceedings before the authorities in the State party suffered from any such
defects. The Committee accordingly considers that the author has failed to
substantiate her claims under article 7, for purposes of admissibility, and
it concludes that this part of the communication is inadmissible under
article 2 of the Optional Protocol.
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[FN5] See Communication No.1302/2004, Khan v. Canada, inadmissibility
decision of 25 July 2006, para. 5.4. and Communication No. 1234/2003, P.K.
v. Canada, inadmissibility decision of 20 March 2007, para. 7.2.
[FN6] See for example Communication No. 541/1993, Errol Simms v. Jamaica,
inadmissibility decision adopted on 3 April 1995, para. 6.2 and P.K. v.
Canada, inadmissibility decision of 20 March 2007, para. 7.2.
[FN7] See Communication No. 1234/2003, P.K. v. Canada, inadmissibility
decision adopted on 20 March 2007.
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8.3 With respect to the alleged violation of article 7, in so far as it
relates to the author's medical condition, the Committee notes the State
party's argument that the author did not make this claim before the domestic
courts. The Committee recalls its jurisprudence, according to which the
requirement of exhaustion of domestic remedies, which allows the State party
to remedy an alleged violation before the same issue is raised before the
Committee, oblige authors to raise the substance of the issues submitted to
the Committee before domestic courts. Noting that the author has failed to
raise the alleged violation of article 7, in so far as it relates to the
author's medical condition, before domestic courts, the Committee concludes
that this part of the communication is inadmissible pursuant to article 2,
and article 5, paragraph 2 (b) of the Optional Protocol.
8.4 As to the author's allegation under article 14 that she was not afforded
an effective remedy to challenge the credibility of the investigative report
of the Foreign Ministry, the Committee notes the State party's argument that
the author could have exercised the right to ask a court to review the
legitimacy of the decision taken under article 10, subsection 2 of the
Government Information (Public Access) Act to withhold information
concerning investigative sources and methods employed for writing the
report. The Committee refers to its jurisprudence that deportation
proceedings did not involve either, "the determination of any criminal
charge" or "rights and obligations in a suit at law" within the meaning of
article 14 FN8. It notes that, in the present case, the author was not
charged or convicted for any crime in the State party and her deportation
and that of her children to Armenia does not constitute a sanction imposed
as a result of a criminal proceeding. The Committee further notes that the
concept of a "suit at law" under article 14, paragraph 1, of the Covenant is
based on the nature of the right in question rather than on the status of
one of the parties FN9. In the present case, the proceedings relate to the
author's right to receive protection for herself and her children in the
State party's territory. The Committee considers that proceedings relating
to aliens' expulsion, the guarantees in regard to which are governed by
article 13 of the Covenant, do not fall within the ambit of a determination
of "rights and obligations in a suit at law", within the meaning of article
14, paragraph 1.FN10 The Committee therefore concludes that the author's
claim under article 14 is inadmissible ratione materiae pursuant to article
3 of the Optional Protocol.
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[FN8] See Communication No. 1234/2003, P.K. v. Canada, inadmissibility
decision of 20 March 2007, para. 7.4 and 7.5
[FN9] Communication No. 112/1981, Y.L. v. Canada, inadmissibility decision
adopted on 8 April 1986, para.9.1 and 9.2; Communication No.441/1990,
Casanovas v. France, Views adopted on 19 July 1994, para.5.2; Communication
No. 1030/2001, Dimitrov v. Bulgaria, decision on admissibility adopted on 28
October 2005,para.8.3.
FN10 See Communication No. 1234/2003, P.K. v. Canada, inadmissibility
decision of 20 March 2007, para. 7.4 and 7.5.
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8.5 As to the author's claim under articles 17 and 23, the Committee notes
that the author did not challenge in her comments dated 2 May 2007 the state
party's argument that the author had not brought this issue before the
domestic courts. Given the author's failure to do so, the Committee
considers that this part of the communication is also inadmissible under
article 2 and article 5, paragraph 2 (b), of the Optional Protocol.
8.6 As to the author's claim under article 24, the Committee considers that
the author has not substantiated, for purpose of admissibility, the reasons
why sending her children back to Armenia with her, would amount to a
violation of this provision. The Committee therefore considers this claim
inadmissible as unsubstantiated within the meaning of article 2 of the
Optional Protocol.
9. The Committee therefore decides:
a) That the communication is inadmissible under articles 2, 3 and 5,
paragraph 2 (b), of the Optional Protocol;
b) That this decision shall be communicated to the author and to the State
party.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee. |
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