CASE OF A.G.R. 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
6. The applicant was born in 1965 and has been residing in the Netherlands since 1997. 7. The applicant entered the Netherlands on 2 December 1997 and applied for a residence permit for the purpose of asylum as well as for reasons not related to asylum. In support of this application, he gave the following account in his interviews with immigration officials. 8. He had been a member of the communist People’s Democratic Party of Afghanistan (“PDPA”) since 1978/79, and had worked for the Afghan security service KhAD/WAD (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”) from 1982 to 1992. Upon the PDPA’s advice the applicant had joined the KhAD as an alternative to mandatory military service. He had been stationed in Paktia from 1982 to 1986, where he had initially performed administrative tasks for one month within KhAD’s local Political Affairs department, followed by preparing/compiling course materials for KhAD’s internal training within the same department. He had done this until 1986. He had also been involved in the organisation of cultural events for KhAD’s youth department. 9. In 1984 the applicant had been sent to the Union of Soviet Socialist Republics (“USSR”) for six months for training (KhAD’s organisation and the functioning of a secret service). Upon completion of this training he had been promoted to the rank of third lieutenant. In 1986 the applicant had participated in six months of political training, also in the USSR. 10. From 1987 to 1988 the applicant had worked for KhAD’s Political Affairs department in Kandahar. From 1988 to 1992 he had worked for KhAD’s “Directorate 89”, located in Kabul, where he had been given the task of internal control and research into the functioning of KhAD staff. The applicant’s highest attained military rank, through periodical promotions, was that of major. 11. The applicant had fled from Afghanistan to Pakistan on 5 May 1992, a week after the fall of the PDPA regime. After the applicant’s flight, his father was assaulted in Afghanistan by mujahideen who had come to ask him about the applicant’s whereabouts. The applicant’s father had to have a kidney removed as a consequence of the battering he suffered at the hands of the mujahideen. The applicant’s family had joined the applicant in Pakistan six months after the applicant’s departure from Afghanistan, but they had lived separately for safety reasons. His family had lived with relatives in Pakistan, close to the Afghan border. The applicant himself had stayed in Karachi. On an unspecified date in 1995, unidentified mujahideen had come to the applicant’s parents’ home searching for the applicant. On that occasion, the applicant’s youngest brother had been ill-treated and another brother had been taken away, tortured and killed by the mujahideen in their attempt to find the applicant. 12. On 21 April 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request, holding that the applicant had failed to establish personal circumstances warranting a decision to grant him asylum. The applicant had never been approached personally by the mujahideen in Afghanistan; he had only made vague declarations about the post he had held in the KhAD, and he had lived for more than five years in Pakistan without experiencing problems and/or having been found by the mujahideen (who were said to be active in Pakistan too). Although they might have known where the applicant’s family were, it was considered implausible that the mujahideen would have been aware of the applicant’s whereabouts in Pakistan. The Deputy Minister also held that the applicant’s submissions regarding the assault on his father and killing of his brother were brief and vague. 13. The Deputy Minister of Justice did, however, grant the applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid for one year from 3 December 1997, on the basis of a temporary categorial protection policy (“categoriaal beschermingsbeleid”) in respect of Afghanistan. 14. On 18 May 1998 the applicant submitted an objection (bezwaar) to the Deputy Minister against the decision to reject his asylum request. On 21 January 2000, following a hearing held on 30 September 1999 before an official board of enquiry (ambtelijke commissie), the Deputy Minister rejected the applicant’s objection. The Deputy Minister found, inter alia, that the applicant had failed to establish that he had held a position within KhAD of sufficient importance to warrant the conclusion that he would run a real risk of persecution upon his return to Afghanistan. The Deputy Minister further noted that the applicant had not experienced any problems with the mujahideen either, stressing that the applicant had easily crossed a mujahideen-controlled border crossing with Pakistan in 1992. The Deputy Minister further found that the applicant had failed to demonstrate that he ran a real risk of persecution by the Taliban, who were in charge of most of Afghanistan at the time the impugned decision was taken. The Deputy Minister underlined in this regard the unlikelihood of the Taliban having been aware of the applicant’s past activities for KhAD, including the two military training programmes he had allegedly attended in the USSR. The Deputy Minister also dismissed the applicant’s argument that, in Afghanistan, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. 15. The applicant lodged an appeal against this decision with the Regional Court (rechtbank) of The Hague. Pending these appeal proceedings, the applicant was informed that the Deputy Minister had decided, in view of the applicant’s involvement with the KhAD, to examine the possible applicability of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention) to his case and that for this reason the impugned decision of 21 January 2000 was withdrawn. Thereupon, the applicant withdrew his appeal. 16. Meanwhile in December 2000, the situation in Afghanistan not having sufficiently improved, the applicant’s conditional residence permit was converted ex lege into an indefinite residence permit after he had held it for a period of three years. Subsequently, with the entry into force of the Aliens Act 2000 (Vreemdelingenwet 2000) on 1 April 2001, the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum. 17. On 17 March and 9 April 2003, the applicant was interviewed by the immigration authorities about the nature of his activities for the KhAD. 18. On 22 March 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the applicant of her intention (voornemen) to revoke his residence permit and to hold Article 1F of the 1951 Refugee Convention against him. The applicant’s asylum claim had been considered in the light of an official report (ambtsbericht), 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. On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD or its successor the WAD. 19. The Minister found it established that the applicant had worked as a commissioned officer in the KhAD’s Directorate 89 from 1988 to 1992 and considered that, in his account to the Netherlands authorities, he had sought to trivialise his activities for the KhAD. She rejected the applicant’s argument that the applicability of Article 1F of the 1951 Refugee Convention ought to have been examined at an earlier stage, holding that at the relevant time (1997/98) considerably less information had been available to the Netherlands asylum authorities about the full extent of the human rights violations committed by the KhAD, notwithstanding that to a certain extent there had been a general awareness of the nature of the former communist regime in Afghanistan. 20. The Minister then proceeded to an analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed and so-called “knowing and personal participation” test. Noting, inter alia, the applicant’s steady career path in the KhAD, the Minister excluded the possibility of the applicant not having known or not having been involved in human rights violations committed by the KhAD. Relying on the official report of 29 February 2000, the Minister underlined the widely known cruel character of KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations as well as the climate of terror which it had spread throughout the whole of Afghan society. The Minister lastly emphasised that the applicant had done nothing to distance himself from KhAD during the ten years he had made a career there, referring to the applicant’s own statement to the effect that he had consciously chosen to stay with KhAD in order to avoid being sent to the war front. The Minister considered that the consequences of that choice were for the applicant to bear. 21. On 28 April 2004, the applicant submitted written comments (zienswijze) on the Minister’s intended decision and, on 19 May 2005, he was once more heard before an official board of enquiry. 22. On 6 January 2006 the applicant was served with an additional notice of intent in which the Minister examined whether the applicant’s expulsion to Afghanistan would be compatible with his rights under Article 3 of the Convention, as required in expulsion cases according to the case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State. The Minister noted that, according to an official report on Afghanistan issued by the Netherlands Ministry of Foreign Affairs in July 2005, the position of ex-communists and persons associated with the former communist regime was not yet entirely clear. Members of the KhAD/WAD possibly ran a risk of becoming a victim of human rights violations from the side of the authorities (except for the government) but more so from the side of the population (victims’ relatives) as they were identified with human rights violations during the communist regime. However, there were no indications that persons in Afghanistan should fear persecution merely because of their ties with the former communist regime. The Minister, therefore, held that the applicant had to demonstrate personal facts or circumstances warranting the conclusion that his return to Afghanistan would be in breach of Article 3 of the Convention, and found that the applicant had not done so. In reaching this finding, the Minister noted that the applicant’s fear of being subjected to treatment proscribed by Article 3 had remained unsubstantiated in any concrete manner and was only based on assumptions. The applicant had not specified which particular faction of the mujahideen had been looking for him shortly after he left Afghanistan, nor whether that faction was currently holding any position of power in Afghanistan. The Minister further took into account the applicant’s statement made at the hearing of 19 May 2005 that in the meantime his parents and brother had returned to Kabul. Although the applicant’s father had allegedly been approached in early 2005 by individuals asking for the applicant, the Minister held that it had not been demonstrated that the applicant’s parents and brother had experienced serious difficulties from the authorities or any groups. The Minister further considered that the mere fact that Article 1F of the 1951 Refugee Convention was being held against the applicant did not in itself warrant the conclusion that, if expelled to Afghanistan, he would have to fear treatment contrary to Article 3 of the Convention. The Minister also rejected as still unsubstantiated the applicant’s claims that he risked treatment contrary to Article 3 because he would be considered an infidel as his family was not professing Islam, as he drank alcohol and had studied, and also because of his ethnicity. 23. The applicant submitted additional written comments on 15 February 2006 and, on 18 May 2006, was heard once more before an official board of enquiry. 24. In her decision of 28 November 2006, the Minister revoked the applicant’s residence permit. The notices of intent of 22 March 2004 and 6 January 2006 were added to the decisions and formed part of them. The Minister did not deviate, in the relevant part, from her earlier conclusions in the notices of intent and went on to confirm them on all points. The applicant’s rebuttals were dismissed as not raising any new grounds. Moreover, in a letter of the same date the Minister informed the Public Prosecutor’s Office (Openbaar Ministerie) that Article 1F of the 1951 Refugee Convention had been held against the applicant and asked the Public Prosecutor’s Office to consider prosecuting the applicant under criminal law. No further information on any follow-up to this letter has been submitted. 25. On 11 December 2006, the Minister notified the applicant of her intention also to impose an exclusion order (ongewenstverklaring) on him. The applicant submitted written comments on this intended decision on 21 December 2006 and on 9 July 2007 was heard before an official board of enquiry. 26. An appeal by the applicant against the Minister’s decision of 28 November 2006 was rejected on 13 July 2007 by the Regional Court of The Hague, sitting in ‘s-Hertogenbosch. It accepted the Minister’s impugned decision to hold Article 1F against the applicant as well as the underlying reasoning. It further upheld the Minister’s decision and underlying reasoning that the applicant’s removal would not be contrary to his rights under Article 3 of the Convention. 27. On 19 September 2007, the Administrative Jurisdiction Division rejected a further appeal by the applicant on summary grounds, holding: “What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling. Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.” No further appeal lay against this ruling. 28. On 28 September 2007, the Deputy Minister of Justice imposed an exclusion order on the applicant. An objection by the applicant to this decision was rejected by the Minister on 8 January 2008. On 14 January 2008, the applicant appealed to the Regional Court of The Hague. No further information about these appeal proceedings has been submitted.