CASE OF S.D.M. AND OTHERS v. THE NETHERLANDS
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)
Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicants were born in 1969, 1975 and 2002 respectively. They have been residing in the Netherlands since 1996. 6. The first applicant entered the Netherlands and applied for asylum on 10 March 1996, submitting the following account to the immigration authorities. He stated that he was a single Afghan national of Tajik origin, that he had never joined a political party, and that he had worked from 1988 to 1992 for the Afghan security service Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”) of the former communist regime in Afghanistan. 7. In 1988 he had reported for compulsory military service. In response to his request to be posted close to home, he had been assigned to the KhAD/WAD in Herat. After his basic training, which had lasted three months, he had started to work for Department 5 of the KhAD/WAD in Herat, which – under President Najibullah’s national reconciliation policy sought to establish peaceful relations with the mujahideen and their reintegration into Afghan national institutions – did not combat the mujahideen opposition but sought to try to negotiate with and persuade mujahideen groups to conclude peace agreements. These agreements entailed remunerated cooperation with the ruling communist People’s Democratic Party of Afghanistan (“PDPA”). 8. In the first year and as a conscript, he had performed guard duties and certain administrative tasks, such as making propaganda posters for the PDPA’s national reconciliation policy, taking minutes of meetings, copying information from reports into books to be held in the central archives, and collecting and recording neighbourhood reports. 9. After having worked for a year for the KhAD/WAD as a conscript, he had agreed to become a professional soldier. He had been appointed to the rank of Second Lieutenant (“Doham Bridman”). His activities had consisted mainly of administrative duties relating to the processing of information gathered by more senior officers about mujahideen commanders. He had worked for the KhAD/WAD until April 1992, when he left work after the communist Najibullah regime was overthrown by the mujahedin. Shortly after they had seized power, the mujahideen proclaimed an amnesty for persons who had worked for the KhAD/WAD. He had returned to work, had been given other tasks and had worked for the mujahideen until 18 or 19 January 1996, when the Taliban seized power in Herat. Until that moment, Herat had been governed by a commander who, like the applicant, was of Tajik origin. One day after the arrival of the Taliban in Herat in the second half of January 1996 and fearing for his life, the first applicant had fled to Turkmenistan from where he had travelled by air to the Netherlands. 10. On 12 September 1996, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the asylum claim then made by the first applicant, holding that he had failed to establish personal circumstances warranting a decision to grant him asylum. The mere fact that he belonged to the Tajik ethnic minority did not suffice in that respect. Although the Deputy Minister acknowledged that it was not unlikely that former KhAD staff members might experience problems from the new Government in Afghanistan, she found this not to be the case as regards the first applicant, as he had continued working for the Afghan authorities during the rule of the mujahideen from 1992 to 1996 without experiencing any problems. The Deputy Minister further considered it unlikely that the Taliban were or would become aware of the first applicant’s past professional activities for the former communist regime. 11. The Deputy Minister of Justice did, however, grant the first applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid for one year from 10 March 1996, on the basis of the unabated bad situation (“onverminderd slechte situatie”) in Afghanistan. 12. On 11 October 1996, the first applicant submitted an objection (bezwaar) to the Deputy Minister against the decision to reject his asylum request. On 11 December 1996, the Deputy Minister rejected the objection. Although the first applicant could have appealed to the Regional Court (rechtbank) of The Hague, he did not do so. 13. On 4 June 1998, the first applicant made a second asylum claim, which pursuant to article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) had to be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The new elements on which the first applicant based his fresh asylum request were his relationship with a woman in 1993 in Afghanistan out of which a child might have been born, his past work for the KhAD, and various documents, including a copy of a judgment handed down in October/November 1995 in which a Taliban Islamic Court in Herat - in proceedings held in absentia – had convicted the first applicant and seven others of conspiracy against the Taliban and sentenced them to death. For identification purposes, photographs of the convicts, including the first applicant, were appended to this judgment. The first applicant had only learned about the existence of this judgment on 26 November 1997, thus after his flight from Afghanistan, when his mother had sent him the judgment by mail from Iran, where she had gone for medical reasons. The first applicant did not know how or when his mother had obtained the judgment, but he assumed that it had been put up around his neighbourhood at some point in time, as local custom prescribed. The first applicant had also been informed, in a letter from his mother, that his brother had been captured and tortured in order to locate him. The first applicant further submitted on 11 September 1998 a detailed written account of his activities for the KhAD. 14. Meanwhile, in March 1999, the situation in Afghanistan not having sufficiently improved, the first applicant’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of three years. 15. In her decision of 28 February 2001, after the first applicant had been interviewed again by the immigration authorities during which he stated inter alia that he had held the rank of First Lieutenant in the KhAD, the Deputy Minister rejected the first applicant’s second asylum claim and, considering that there were serious reasons for believing that the first applicant was guilty of acts referred to in Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (the 1951 Refugee Convention), applied this asylum exclusion clause. 16. Referring to an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 50-52, 30 June 2015), the Deputy Minister emphasised the widely known cruel character of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture, murder, arbitrary executions and other human rights violations, and the climate of terror which it had spread throughout the whole of Afghan society, including the army. 17. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in the KhAD/WAD were likely to fall within the scope of Article 1F of the 1951 Refugee Convention, the Deputy Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention. She noted that the KhAD/WAD was considered to be an elite unit of the communist regime, and that only those whose loyalty was beyond doubt were eligible for recruitment to the service. Furthermore, newly recruited officers were initially placed in departments of the KhAD/WAD specifically responsible for investigating “elements of State security”, where – in order to prove their loyalty unequivocally – they were directly involved in the human rights violations. In the light of the above, and noting that KhAD’s Directorate 5, for which the first applicant had worked in Herat, had two interrogation centres in Kabul, the first applicant’s plea that he had never been involved in any human rights violations and had worked his whole career for one department only was dismissed. The Deputy Minister dismissed the first applicant’s claim that he had only performed tasks of an administrative nature. The Deputy Minister found, on the basis of the first applicant’s statements, that he had actually been involved in activities of an operational nature: persuading enemies of the regime to cooperate by accompanying his superiors on field missions and taking minutes of meetings that had taken place between the KhAD and those enemies, namely the mujahideen. The Deputy Minister did not attach credence to the first applicant’s claim that he had been ignorant of the human rights violations committed by the KhAD/WAD. In this regard it was held that the first applicant had worked directly for the commanders in chief of his Directorate and had accompanied them on field missions. It was therefore highly implausible that he would have had no knowledge whatsoever of the human rights violations for which the KhAD/WAD was responsible. The Deputy Minister held that it should be concluded from the first applicant’s functions and work effected for the KhAD/WAD that he had been specifically implicated in the human rights violations committed by the KhAD/WAD. 18. The Deputy Minister underlined that the application of Article 1F of the 1951 Refugee Convention did not require proof of personal commission by the first applicant of the alleged crimes; it sufficed that serious reasons existed to consider that the first applicant had, or should have had, knowledge of those crimes and that he bore responsibility for them, which responsibility he had voluntarily assumed. Accordingly, Article 1F of the 1951 Refugee Convention was held against the first applicant, and as a consequence his application for a residence permit for asylum purposes was denied. 19. The Deputy Minister also revoked the first applicant’s residence permit, which he had obtained by the Deputy Minister’s decision of 12 September 1996. It was held in this regard that the first applicant had not given a correct and full insight into his past activities, which, had he done so, would have stood in the way of issuing him the residence permit he had been granted. 20. The Deputy Minister further requested the Public Prosecutor’s Office (Openbaar Ministerie), by letter of 28 February 2001, to examine the possibilities of prosecuting the first applicant in the Netherlands for the crimes imputed to him on the basis of Article 1F of the 1951 Refugee Convention. The Deputy Minister sent another letter to the same effect on 12 February 2003. No further information about the follow-up to these letters has been submitted. 21. On 27 March 2001, the first applicant submitted an objection (bezwaar) to this decision. On 20 December 2002, the first applicant was heard on his objection before an official board of enquiry (ambtelijke commissie). On 12 February 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected the objection. The Minister upheld the Deputy Minister’s previous decision and proceeded, in addition thereto, to an analysis of the first applicant’s individual responsibility under the 1951 Refugee Convention on the basis of the prescribed and so-called “knowing and personal participation test”. 22. As regards the “knowing” element, the Minister found, relying on the aforementioned official report of the Ministry of Foreign Affairs, that the first applicant had known or should have known about the criminal character of the KhAD/WAD. Basing himself on the Aliens Act Implementation Guidelines (Vreemdelingencirculaire), the Minister held that, according to a letter of the Deputy Minister of Justice of 3 April 2000, knowing participation was in principle to be assumed in cases of persons who had worked for certain categories of organisations, to which the KhAD/WAD belonged. Having regard to the official report of 29 February 2000 (see paragraph 17 above) and other international materials, the Minister considered that the systematic and large-scale commission of human rights violations by KhAD/WAD under the PDPA’s rule was a fact of common knowledge and that therefore the first applicant could not have been ignorant of those acts. The first applicant’s argument that, given his low rank, he had had no knowledge of and could not be held responsible for human rights violations attributed to the KhAD/WAD, was thus not accepted by the Minister, who emphasised that the first applicant had declared that everyone had feared the regime and that he had successfully found an administrative post during his mandatory military service. The Minister found that, by admitting to the ubiquitous fear of the regime, the first applicant had admitted to having known of atrocities committed by that regime. As regards the first applicant’s personal participation in human rights violations attributed to KhAD, the Minister found that he had failed to establish that he had not committed the alleged crimes himself or that his conduct, by act or omission, had prevented those crimes from being committed. The Minister held, therefore, that the first applicant had personally participated in the crimes imputed to him. 23. Although the Minister considered that it could not be ruled out that the first applicant would run a risk of treatment contrary to Article 3 of the Convention if he were expelled to Afghanistan, it was nevertheless held that he was under an obligation to leave the Netherlands. 24. The Minister lastly found that the first applicant was not eligible for a residence permit under the three-year policy (this was a policy entitling asylum-seekers to a residence permit if their asylum requests had not been finally determined within three years, provided that there were no contraindications such as, for instance, a criminal record) as Article 1F of the 1951 Refugee Convention had been held against him, which constituted a contraindication. 25. The first applicant’s objection to the refusal to grant a residence permit under the three-year policy was rejected by the Minister on 17 April 2003. 26. Meanwhile, the second applicant had joined the first applicant in the Netherlands. She was granted a residence permit for the purpose of residing with her husband on 30 March 2000, thus at a time when the first applicant still held his provisional residence permit. 27. On 16 March 2001 the Deputy Minister of Justice also revoked the second applicant’s residence permit, as it was linked to the first applicant’s residence permit, which had been revoked. The second applicant submitted an objection to this decision. The Minister of Immigration and Integration rejected the second applicant’s objection on 12 February 2003. Meanwhile, on 8 November 2002, the second applicant had given birth to the third applicant. 28. Both the first and second applicants appealed to the Regional Court (rechtbank) of The Hague against the decisions taken against them, namely, as regards the first applicant, the Minister’s decisions of 12 February and 17 April 2003 and, as regards the second applicant, the Minister’s separate decision of 12 February 2003. 29. The Regional Court joined both applicants’ appeals and, in its judgment of 26 May 2005, agreed with the Minister’s decision and underlying reasoning to hold Article 1F of the 1951 Refugee Convention against the first applicant and the consequential decisions to revoke the residence permits held by the first and second applicants. However, as regards Article 3 of the Convention and with reference to case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, it held that the Minister should, wherever possible, avoid creating a situation in which an asylum seeker was refused a residence permit but could not be expelled to his or her country of origin for reasons based on Article 3 of the Convention. For that reason, the decision should demonstrate that the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Regional Court found, the Minister had failed to do in the present case, for which reason it quashed all decisions appealed against as regards both the first and second applicants, and remitted the case to the Minister in order for her to take a fresh decision. 30. On 12 October 2005, in accordance with the court’s judgment and after the first applicant, in view of the changed situation in Afghanistan, had been heard once more before an official board of enquiry on 24 August 2005, the Minister took a fresh decision on the objections submitted by the first and second applicants. She maintained her decisions that Article 1F should be held against the first applicant and that both applicants were accordingly ineligible for a residence permit. 31. As regards Article 3 of the Convention, the Minister noted that, according to an official report on Afghanistan issued by the Netherlands Ministry of Foreign Affairs in July 2005, certain categories of former officials – who were identified with human rights abuses committed during the communist regime, including KhAD officials – continued to be at risk in Afghanistan, not only from current power holders but more so from the population (families of victims) and the mujahideen, unless they enjoyed protection by virtue of good contacts with influential Islamic and political parties and/or tribes. To determine the level of risk, the official report enumerated a set of factors which would need to be balanced in each individual case: the extent to which the person in question was likely to be identified with communist ideology, his or her rank in the former regime, and the existence of any ties which family members might have with the former communist regime. The Minister noted that mere membership of the PDPA did not suffice to establish a real risk of being subjected to treatment in breach of Article 3 of the Convention. 32. The Minister went on to hold that the first applicant had not attracted the particular attention of any groups or individuals in the period prior to the coming to power of the Taliban. The Minister underlined in this regard that, after the fall of the PDPA regime, the first applicant had easily obtained a job in the local police headquarters for the mujahideen governor of Herat, Ismail Khan, who was currently the Minister for Energy in Afghanistan. 33. As regards the first applicant’s fear of the Taliban, the Minister held that the general situation in Afghanistan had improved since 2004 and that any Taliban insurgents were concentrated mostly in areas outside Herat. As to the first applicant’s fear of execution of the death sentence pronounced against him by the Taliban, the Minister held, basing herself on the most recent official report of the Netherlands Ministry of Foreign Affairs, that the population register, which had already been inaccurate, had not improved during Taliban rule due to illiteracy or a lack of interest in maintaining it. Furthermore, many courts of law had been destroyed during armed conflict. It was, therefore, not likely that the present authorities would be aware of the judgment against the first applicant. Moreover, judgments delivered under the Taliban rule were not executed without prior verification by a court of law of their compliance with current Afghan law. In this light the Minister did not attach much credence to the first applicant’s submissions that his mother had not been allowed to collect her possessions in Afghanistan due to her son’s conviction by the Taliban court. In addition, the Minister considered that it was unlikely that the first applicant would again be sentenced to death by Afghanistan’s present courts, in view of the fact that the conviction had been based on an alleged conspiracy against the Taliban. The first applicant’s submission that his being branded an infidel in the judgment could still have value before today’s Afghan courts was dismissed by the Minister, who found that, under the Taliban regime, the mere denunciation of the Taliban government in itself already constituted infidel status. 34. The Minister further noted, basing herself on a person-specific official report (individueel ambtsbericht) issued by the Ministry of Foreign Affairs on the first applicant on 19 September 2005, that in 1999 he had obtained an Afghan passport through Afghanistan’s diplomatic representation in the United Kingdom. Since the United Kingdom had not recognised the Taliban as Afghanistan’s lawful government, the Afghan embassy in the United Kingdom still represented the Government of President Burhanuddin Rabbani, who had been president from 1992 to 1996, thus until the capitulation of Kabul to the Taliban. The Minister took note of the fact that Mr Rabbani’s political party, the Jamiat-e-Islami, was currently well represented in the present Afghan Government. As the first applicant had successfully applied for a passport from an embassy represented by that party, the Minister held that he could not have come to Jamiat-e-Islami’s negative attention. Moreover, the passport had been issued more than three years after the death sentence had been handed down. In addition, as it did not appear that the first applicant had converted to another religion or had in other ways offended Islam, the Minister did not find it likely that he would be deemed an infidel again in today’s Afghanistan. 35. As regards the first applicant’s identification in present-day Afghanistan with communist ideology, the Minister’s finding that this did not pose him any problems during the mujahideen rule over the country led to the conclusion that he was unlikely to encounter such problems in the future. Furthermore, the first applicant had not made any mention, in the course of the interviews held with him, of any ties that members of his family may have had to the communist regime, nor of any problems he expected to encounter upon return as a result of any such ties. 36. The Minister therefore concluded that the first applicant had not demonstrated that he would be exposed to a real of being subjected to treatment contrary to Article 3 of the Convention if returned to Afghanistan. 37. The appeal by the first and second applicants was rejected on 18 August 2006 by the Regional Court of The Hague sitting in Arnhem. It concurred with the Minister on all points. No further appeal lay against this decision. 38. On 11 June 2008, after the first and second applicants’ separation and divorce, the second and third applicants submitted a fresh asylum request, which was granted on 10 March 2009, based on the position that the second applicant, as a single woman, and her child would find themselves in on returning to Afghanistan.