CASE OF A.W.Q. AND D.H. 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 applicants are a married couple and were born in 1956 and 1966 respectively. They have been in the Netherlands since 1999. 7. The applicants and their three children (two daughters, A and B, born in, respectively, 1992 and 1993, and a son C, born in 1997) entered the Netherlands on 17 December 1999 and, on 26 December 1999, applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Convention”) and/or treatment in breach of Article 3 of the Convention from the mujahideen and/or the Taliban in Afghanistan on account of the first applicant’s professional activities during the former communist regime. 8. The first applicant submitted that he had become a member of the communist People’s Democratic Party of Afghanistan (“PDPA”) in 1978 and that, as a conscript, he had served in a battalion in Kabul from 1978 to January 1981. Feeling a moral obligation to serve his country, he had subsequently decided to join the army for a professional military career. 9. From March to December 1981 he had taken a preparatory course for university studies in the Soviet Union, which had mainly consisted of Russian language lessons. He had subsequently been sent by the Director of Political Affairs of the General Staff of the Ministry of Defence to the Minsk Higher Combined Arms Military Political School in Belarus, where he had studied between 1982 and 1986. On 5 July 1986 he had graduated with a Master’s degree in pedagogic and social sciences. 10. Holding the rank of captain, the applicant had been assigned to Division 5, which was responsible for controlling the border between Afghanistan and Iran. From September 1986 to December 1989 the first applicant had worked in that area in the political affairs division of the border security unit. He had been responsible for cultural matters, including propaganda, combating illiteracy amongst soldiers, and the creation of patriotic awareness amongst them. He had further been given the task of persuading deserters who had been caught to do their military service in the Afghan army. The first applicant stated that he had apprehended about 300 such deserters between 1986 and 1989, and that he had only failed in respect of fifteen of them to persuade them to do their military service. These fifteen individuals had been handed over to the Military Public Prosecutor. In 1988 he had been promoted to the rank of senior captain. 11. In 1990 he had been appointed first secretary or deputy scientific officer of the Army Museum in Kabul, which fell under the responsibility of the propaganda division of the Ministry of Defence. He had been responsible for collecting weapons for the museum. He had later been promoted to deputy director of the museum and, holding the rank of major, had worked in that function until 1992. 12. The first applicant’s problems had started after the mujahideen had taken power in 1992. Mujahideen had come to the army museum to take exhibits which they thought were valuable as weaponry or otherwise. When they recognised the first applicant as an army officer who had worked for the former regime, the mujahideen had incarcerated him – together with three other officers and a soldier – in the basement of the museum. He had been released after a week. The mujahideen had wanted him to cooperate with them by helping them to take arms and ammunition out of the museum. He had refused all such requests, which had led to aggressive behaviour towards him on the part of the mujahideen. The first applicant had repeatedly reported this attitude to these mujahideen’s superiors in the Ministry of Defence, namely two generals with whom the first applicant had collaborated during the former communist regime. These two generals had both remained in their position at the Ministry of Defence and were working with the Hezb-e-Harakat-e-Islami of Ahmad Shah Massoud. After the museum had been placed under the control of a mujahideen commander, the first applicant had resigned in March 1994 and taken the keys of the museum to the Ministry of Defence, to be given to one of the two generals. 13. The second applicant – who had also applied for asylum on behalf of the applicants’ children – had worked as a guide in the same army museum in Kabul when the city was captured in 1992 by the mujahideen. Under pressure from the mujahideen and in the footsteps of her husband, she had also resigned from her job in 1994. 14. Shortly after the first applicant had resigned from his post in the museum, the applicants received a written death threat in the courtyard of their house: the house was destroyed a few days later. After a brief stay with the second applicant’s father in another neighbourhood of Kabul, the applicants moved in March 1994 to Kunduz, which was under the control of followers of Ahmad Shah Massoud, who – like the applicants – was of Tajik origin. In Kunduz, the applicants lived off the income generated by land owned by the first applicant’s family, and the first applicant, admittedly not out of any financial necessity, opened a small shop in order to have something to do. 15. In April or May 1998 – after the Taliban had seized power in Kunduz on 26 June 1997 – two of the first applicant’s cousins appeared at the applicants’ house together with eight to ten Taliban. According to the first applicant, he had been betrayed by these two relatives. They had informed the Taliban of his position under the former communist regime and his whereabouts. The Taliban conducted a search for weapons in the applicants’ house. Although they found none, the Taliban arrested the first applicant and his brother. They were separated shortly after their arrest. 16. During his detention by the Taliban, for the first two weeks in a basement on a military base in Kunduz and subsequently in the Kunduz prison, the first applicant had been interrogated, ill-treated and forced to perform hard labour. As it happened sometimes that in the evening hours two or three detainees were taken away from the cell they shared with the applicant and others and were never seen again, the first applicant feared for his life during his detention. 17. On a date he could not remember, the first applicant was taken before a tribunal composed of four mullahs, who interrogated him whilst he was being ill-treated. He was subsequently forced to place his fingerprint on documents, most of which were written in Arabic. 18. During his subsequent transport in a convoy consisting of five cars from Kunduz to a prison in Kabul, the first applicant had managed to escape when the convoy had come under armed attack, he believed by followers of Ahmad Shah Massoud. The first applicant had then fled to Mazar-i-Sharif, where he had been joined by his family on 7 November 1999. On 12 November 1999 the applicants and their children had left Afghanistan. 19. The first applicant was interviewed by Dutch immigration officials about his flight and the motives for it on three occasions; the second applicant on two occasions. On 8 January 2004 they were informed of the intention (voornemen) of the Minister for Immigration and Integration (Minister voor Vreemdelingzaken en Integratie) to refuse them asylum. Having noted the first applicant’s asylum account, an official general 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 two different person-specific official reports (individuele ambts-berichten), DPC/AM 635082 and DPC/AM 696035, both drawn up by the Ministry of Foreign Affairs on 15 December 2000, the Minister decided to refuse the first applicant asylum and to hold Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. On 4 February 2004, a lawyer acting on behalf of the applicants submitted written comments (zienswijze) on this intention. 20. After interviewing both applicants once more, the Minister rejected their asylum applications, in separate decisions taken on 17 February 2004. The elaborately argued notices of intention of 8 January 2004 were added to the decisions and formed part of them. 21. The Minister found, inter alia, that the first applicant constituted a danger to public order (openbare orde), as serious reasons had been found for believing that he had committed crimes referred to in Article 1F of the 1951 Refugee Convention, thus excluding him from international protection under the 1951 Convention . Although the Minister attached credence to the first applicant’s statements in terms of his positions and career within the Afghan army, the applicant’s description of his tasks was deemed to be inaccurate. His statements relating to certain of the tasks he said he had performed (namely his stated activities relating to what was called the PDPA’s national reconciliation policy, amnesty, reconstruction and demilitarisation) were found to be highly implausible. 22. On the basis of the two person-specific official reports of 15 December 2000, the Minister found that, at the relevant time, the political affairs divisions of the Afghan army consisted solely of highly loyal and skilled professional soldiers, that people working for these divisions regularly provided the security service KhAD/WAD with person-specific and general information (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”; the KhAD was set up in 1980 and transformed in 1986 into a ministry called “WAD”, which remained in existence until the communist regime fell in 1992. Although the WAD was the successor of the KhAD, the security service continued to be commonly referred to as KhAD); those working for the political affairs divisions had relatively easy access to the PDPA leadership, and one of their tasks had been to remove anti-government soldiers from the army, if need be with the help of the KhAD. They were thus inextricably connected to the frequent arrests, torture, disappearances and/or executions of disloyal members of the army by the KhAD. 23. The Minister emphasised the widely known cruel character of the KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations, and the “climate of terror” which it had spread throughout the whole of Afghan society, including the army. The Minister underlined the vague definition of “enemy of the communist regime” used by the KhAD, how it found those enemies through an extensive network of spies, and how all of this led to widespread and often random arrests of suspects. The Minister relied in this regard on the general official report of 29 February 2000. 24. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in KhAD and the political affairs divisions of the Afghan army were likely to fall within the scope of Article 1F of the Refugee Convention, the Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention on the basis of the prescribed test known as the “personal and knowing participation test”. 25. On this point, the Minister found that, in view of the contents of the aforementioned official reports of the Ministry of Foreign Affairs, the first applicant had known or should have known about the criminal character of the KhAD, given his position in one of the political affairs divisions of the army and the contacts he had maintained professionally. The Minister further found that the first applicant had directly facilitated the crimes committed by KhAD by performing his tasks in the Afghan army, inter alia the attributed task of arresting and persuading deserters trying to flee across the border to continue military service, failure of which led to the handing over of these deserters to the office of the Military Public Prosecutor. 26. As regards Article 3 of the Convention, the Minister noted that, during an additional interview on his asylum motives held on 1 July 2003, the first applicant had been explicitly invited to submit specific evidence that he would be exposed to a risk of treatment contrary to Article 3 in Afghanistan. The Minister found that the first applicant had not furnished sufficient specific grounds to establish that he would run a real risk of treatment contrary to this provision if returned to Afghanistan. Thus, he had failed to indicate which specific persons or groups would be looking for him, and had only stated in generally phrased terms that he feared persecution by the mujahideen. In respect of the first applicant’s alleged fear of returning to Afghanistan as a (former) member of the PDPA, the Minister held that the first applicant was in a position not dissimilar to that of many other Afghan nationals. Furthermore, the Minister, with reference to the most recent general official report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003, held that the sole fact that an asylum seeker had been a member of the PDPA did not in itself suffice to render Article 3 applicable in the eventuality of an expulsion. 27. Separate appeals by the applicants were rejected in two distinct judgments handed down on 4 August 2005 by the Regional Court (rechtbank) of The Hague, sitting in Assen. 28. As regards the first applicant, the Regional Court accepted the Minister’s decision to hold Article 1F of the 1951 Refugee Convention against the first applicant. It also rejected the first applicant’s arguments based on Article 3 of the Convention. It agreed with the Minister that the first applicant’s fear that he would be subjected to treatment in breach of this provision was based on assumptions, and that he had not submitted any specific evidence of the identity of the person(s) or group(s), or for what reasons, he expected to encounter problems if he were returned to Afghanistan, whereas – according to an official country assessment report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003 – mere membership of the PDPA and active participation in its regime was in itself not enough to raise an issue under Article 3 of the Convention in the event of expulsion of the alien in question. It further rejected, for lack of substantiation, the first applicant’s claim that the International Security Assistance Force (ISAF) in Afghanistan would be unable to provide him with sustained protection. 29. Further separate appeals by the applicants were rejected on summary reasoning on 19 December 2005, in two distinct rulings given by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It found that the further appeals did not provide grounds for quashing the impugned rulings (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against these rulings. 30. On 2 February 2006, the applicants’ fourth child, a daughter named Mina, was born in the Netherlands. 31. On 29 August 2006, the applicants applied for a regular, non-asylum-related, residence permit. This request was rejected on 6 January 2007. The applicant’s objection (bezwaar) was dismissed on 4 December 2007 by the Deputy Minister of Justice (Staatssecretaris van Justitie). The applicants initially lodged an appeal with the Regional Court of The Hague, but withdrew this appeal on 15 July 2008. 32. In the meantime, on 19 February 2008, the second applicant had submitted a fresh asylum claim for herself and on behalf of the three youngest children. The applicants’ eldest daughter had made her own asylum claim. Pursuant to section 4:6 of the General Administrative Law Act (Algemene wet bestuursrecht), a repeat claim – like the one submitted by the second applicant – must be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The asylum claim submitted by the second applicant and her eldest daughter was based on the claim that they had become westernised. The oldest daughter further claimed that she feared being forced into marriage. 33. On 17 September 2010, after an initial negative decision had been quashed on appeal, the Minister of Justice allowed the asylum claim submitted by the second applicant and the three youngest children. The eldest daughter was also granted asylum. 34. More than a year earlier, namely on 12 February 2009 and at the applicants’ request, the President of the Chamber had decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicants to Afghanistan for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). At the same time, the President had decided under Rule 54 § 2 (b) that the Government should be invited to submit written observations on the admissibility and merits of the case. 35. Also, on 27 February 2009 the first applicant had submitted a fresh asylum claim, based on the alleged deterioration in the general security situation in Afghanistan and an increased individual risk of treatment prohibited by Article 3, namely the fact that he was an ex-communist, that he was an atheist and thus belonged to a religious minority, and the fact that he had lived abroad for a long period. He also claimed that, due to his work, he was well known in Afghanistan and was prominent in Afghan circles in the Netherlands. On 19 February 2010, the first applicant was informed of the intention of the Deputy Minister of Justice to reject this request. The first applicant submitted written comments (zienswijze) on this intention on 6 April 2010. 36. This request was rejected on 22 October 2010 by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel). An appeal by the first applicant against this decision was rejected on 31 October 2011 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. It found that the first applicant had not shown evidence that the general security situation in Afghanistan had deteriorated since the determination of his first asylum request, or that the further elements relied on by him did not constitute “nova” warranting a reconsideration of the decision taken on his initial asylum request. In so far as the first applicant relied on Article 8 of the Convention, the Regional Court held that asylum proceedings offered no scope for such arguments, which should be raised in proceedings on a request for a non-asylum-based residence permit, and that it was open for the first applicant to apply for a residence permit based on his family life within the meaning of Article 8. A further appeal by the applicant was dismissed by the Administrative Jurisdiction Division on 31 October 2012. No further appeal lay against this ruling.