TAHERI KANDOMABADI v. the NETHERLANDS
Inadmissible
The applicant, Mr Akbar Taheri Kandomabadi, is an Iranian national, who was born in 1979 and is currently staying in the Netherlands. He is represented before the Court by Mr M.A. Collet, a lawyer practising in Waalwijk. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 August 2000 the applicant arrived in the Netherlands. On the same day, he applied for asylum. In support of his claim for asylum he submitted the following: Whilst living in Teheran, the applicant and his family (consisting of his mother and his two brothers) were frequently harassed by the authorities. By threatening to arrest the family members, the authorities wanted to exert pressure on the applicant’s father to give himself up. The applicant’s father was a professional soldier who did not agree with the regime. When he was ordered to fight against the Kurds in Iran, he deserted, fled the country and applied for asylum in the Netherlands in 1993. Although his father was not recognised as a refugee within the meaning of Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (“the Geneva Convention”), he had been granted a residence permit. In order to avoid arrest, the applicant and his mother and siblings stayed with different relatives, making sure never to stay at any one address for very long. However, the authorities always managed to trace them. The applicant was unable to go to school because his name featured on a list of people who were not allowed to attend school. According to the applicant, this was because his father was wanted by the authorities. In March 1994 the Vezarat-e Sepah Pasdaran-e Enqelab-e Islamic (Islamic Revolutionary Guards, “Sepah Pasdaran”) came to arrest the applicant’s older brother, Hamid, but his uncle Bahran had managed to organise Hamid’s departure to Turkey before he could be arrested. In 1996, the applicant, his mother and younger brother also managed to reach Turkey. However, when Hamid was arrested in Istanbul and sent back to Iran, the other relatives also decided to return to Iran out of concern for him. Hamid was detained for two to three months and tortured during that time. His uncle Bahran managed to obtain Hamid’s release, presumably through the payment of bribes. The applicant resumed his life of staying at different addresses. On 8 July 1999, students demonstrated in Teheran following the closure of a newspaper. That night, security services raided dormitories on the university campus. Several students were wounded and others arrested in the raid. As a result, more student protests followed. The protests spread to other cities. Non-students, including the applicant, also participated. During one of the demonstrations, the applicant handed out wood and stones to the students, helped set fire to a bus and a fire engine and built barricades. Troops responsible for public order charged at the demonstrators; the applicant was beaten and his hand broken. After the demonstrations, many people were arrested and nothing more was heard of them. The applicant learnt that photographs had been taken of the people who had set fire to the bus and the fire engine. His uncle Bahran thought that it would be better for the applicant to leave the country and he put up the money for the applicant to go to Turkey in October 1999. Until his departure, he remained in Teheran, staying in hiding at the houses of friends. Whilst in Turkey, the applicant was told by his mother on the telephone that a summons in his name, ordering him to report to the Sepah Pasdaran, had been delivered to his uncle’s address. The applicant stayed in Turkey for some ten months. He did not apply for asylum in Turkey. A “travel agent” arranged for him to go to the Netherlands, together with a number of other people. They travelled by foot, boat, bus and train. The applicant used a Swedish passport in the name of a man of Iranian origin. The passport had been given to him by the “travel agent”. The applicant did not know through which countries his journey took him. In the proceedings on his first request for asylum, the applicant submitted copies of two summonses. The first (“document (A)”) was dated 17 July 1999 and bore the number 1, the second (“document (B)”) was dated 15 August 1999 and bore the number 3 – the applicant stated that the summons bearing number 2 had never been received. The summonses had been issued by Sepah Pasdaran’s Justice Bureau and stated, without giving any reasons, that the applicant was to report to a specific place at a specific time. According to the applicant, these summonses had been given to his mother. Having considered that the applicant’s asylum request could be dealt with in the so-called accelerated procedure (see below), the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the request on 24 August 2000. The applicant’s objection (bezwaar) against this decision was dismissed as manifestly ill-founded on 12 September 2000 by the Acting President of the Regional Court of The Hague, together with his request for a stay of expulsion. The Acting President agreed with the Deputy Minister that the applicant’s failure to submit documents capable of establishing his identity, his nationality or his travel route affected the sincerity of his account and detracted from its credibility. The Acting President further expressed doubts as to the credibility of the applicant’s account concerning the problems encountered by his family in Iran allegedly as a result of the situation of his father. It was noted in this respect that the applicant’s father had told the Netherlands authorities that he had never encountered problems for political reasons, but that he had been unable to obtain promotion in the army on account of several episodes of desertion. The Acting President also did not find it sufficiently established that the Iranian authorities were aware of the applicant’s participation in the student demonstrations, or that he was “wanted” by those authorities as a result of his participation. The applicant was found to have been inconsistent in this regard, first telling the immigration authorities that, whilst in Turkey, his mother had told him that a summons had been sent to his uncle’s address, yet the copies of the summonses submitted dated from the time when the applicant had still been in Iran, and they had allegedly been given to his mother. Finally, the summonses submitted were not originals and did not state the reason why the applicant was supposed to report to the authorities. On 9 July 2001 the applicant requested both the Deputy Minister and the Regional Court to review their respective decisions in view of the fact that he had in the meantime managed to obtain original documents. The Regional Court refused this request in a decision on 15 February 2002, stating in an obiter dictum that the documents might lead the applicant to decide to lodge a new request for asylum. On 25 June 2002 the Deputy Minister informed the applicant that a request for revision could only be made in the form of a new request for asylum. The applicant was subsequently informed when and where he should formally lodge such a new request. The applicant lodged his second request for asylum on 2 August 2002. This was also dealt with in the accelerated procedure. In support of this request he submitted the originals of the above-mentioned summonses (A) and (B), as well as a further summons (“document (C)”), dated 28 August 1999. He also stated that his uncle in Iran had recently managed to get a third person to obtain the following, original, documents from a file on the applicant: – a letter/memo dated 11 September 1999 from the Justice Bureau in the Western Teheran district to the Opposition Operations Department, stating that the applicant was being prosecuted on charges of participation in the revolt at the university campus, and requesting the addressee to arrest the applicant (“document (D)”); – an undated letter/memo (the space after “date: ” is left blank) from the assistant criminal investigations officer in the police operations division to the commanding officer of border controls, in which reference is made to a letter dated 29 November 1999 of the public prosecution department, and in which the addressee is requested to ensure that the applicant does not leave the country and is arrested should he try to leave (“document (E)”); – an undated letter/memo (the space after “date: ” is left blank) from an assistant information officer to his counterpart in the police identification division, in which reference is made to the order issued by the commanding officer of Sepah Pasdaran relating to the identification of the suspects at the university campus, and in which the addressee is requested to make available all information concerning the background of the applicant (“document (F)”); – an undated letter/memo (the space after “date: ” is left blank) from an assistant information officer to the commanding officer of the Greater Teheran District, in which reference is made to the order issued by the Sepah Pasdaran commanding officer relating to the arrest of those persons who had “caused the university campus [disturbance]”, and in which the addressee is requested to observe all of the applicant’s movements so that he could be arrested once his whereabouts were known (“document (G)”). The applicant’s second request for asylum was rejected by the Minister for Aliens Affairs and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor of the Deputy Minister of Justice) on 5 August 2002. The Minister held that the documents submitted by the applicant did not constitute newly emerged facts or altered circumstances. In this respect, the Minister found that no decisive importance could be attributed to the undated documents. The new documents did not lead to a conclusion different from the one reached on the first request for asylum, given that in those earlier proceedings the applicant’s account had not been found wholly credible; the applicant had not established his identity so that it could not be ascertained whether the new documents related to him, and he had failed to give a plausible explanation as to why he could not have submitted the new documents at an earlier stage. For these reasons, the Minister did not consider that the merits of the new request for asylum should be examined. He therefore rejected it by referring to the decision on the first request, in accordance with Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). On 6 September 2002 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Arnhem, rejected both the applicant’s request for a stay of expulsion and his appeal (beroep) against the decision of the Minister. The judge agreed with the Minister that no newly emerged facts or altered circumstances had been adduced by the applicant. Such facts or circumstances only existed if they had not played a role in the proceedings on the first request for asylum and if they could not have been submitted at that time. Facts and circumstances which had been known to the applicant prior to 12 September 2000 (the date of the final decision on the first request for asylum) could thus in principle not be considered. The documents (E), (F) and (G) could only be seen as further arguments (nadere bewijsvoering) relating to the first request which had already been rejected. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), in which he argued that there were “altered circumstances”: his first request for asylum had been rejected because his account was found not to be credible, whereas the new documents showed that it was credible. The further appeal was rejected on 8 November 2002, the Administrative Jurisdiction Division finding that since documents (E), (F) and (G) were undated, it could not be established that it had been impossible for the applicant to submit them in the proceedings on his first request for asylum. It was further held that the applicant had not adduced any exceptional facts and circumstances relating to him personally, on the basis of which his new request for asylum fell to be assessed outside the framework of Article 4:6 of the General Administrative Law Act. Following the rejection of the applicant’s first request for asylum by the Deputy Minister of Justice on 24 August 2000, the applicant’s entitlement to State-sponsored reception facilities ceased, and it was not revived with the lodging of the second request for asylum. The applicant subsequently received some financial support from refugee and charitable organisations and private donors, but from February 2004 he was no longer in receipt of any kind of income. On 19 April 2004 he lodged an official request to the Central Agency for the Reception of Asylum Seekers (Central Orgaan opvang Asielzoekers; hereafter the “COA”) to be provided with facilities to meet his basic needs. Having received no reaction, the applicant lodged an objection against the implied refusal (fictieve weigering) of his request on 8 May 2004. He also applied to the Regional Court for a provisional measure. Both procedures are currently still pending. Under Article 15 § 1 of the Aliens Act 1965 (vreemdelingenwet, hereinafter “the Act”), which was in force until 1 April 2001, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political convictions, or of belonging to a particular race or a particular social group, could be admitted as refugees. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the Geneva Convention (decision of the Judicial Division of Council of State of 16 October 1980, Rechtspraak Vreemdelingenrecht [Immigration Law Reports] 1981, no. 1). On 1 April 2001, the Aliens Act 2000 entered into force. On the basis of Article 29 of the new Aliens Act, an alien may be eligible for a residence permit for the purposes of asylum if, inter alia, – he or she is a refugee within the meaning of the Geneva Convention, or – he or she has established well-founded reasons to assume that he/she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. Requests which, after a first intake interview with the applicant, are judged to be inadmissible and/or manifestly ill-founded, may be dealt with in an accelerated procedure if they do not require a time-consuming investigation, meaning that they can be processed with all due care within 48 working hours. This fast-track procedure was introduced following a huge rise in the number of asylum applications that began in 1993. Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) provides that an applicant must adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) if a new request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the ne bis in idem principle for the administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of Article 4:6. In the case of a repeat asylum application which also invokes the risk of treatment contrary to Article 3 of the Convention, an assessment by the court outside the framework of Article 4:6 is therefore possible. The Administrative Jurisdiction Division of the Council of State has on one occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances (judgment of 24 April 2003, no. 220300506/1, Nieuwsbrief Asiel- en Vluchtelingenrecht [Newsletter on Asylum and Refugeelaw] 2003/160). It did so on the basis of the exceptional circumstance that there was no dispute between the parties, that on his return to his country of origin, the alien would run a real risk of being subjected to treatment or punishment proscribed by Article 3 of the Convention. During the initial asylum procedure, an alien is entitled to reception and other facilities provided by the State. However, entitlements do not exist if the application has been refused in the accelerated procedure. Pursuant to Article 10 of the Aliens Act 2000, an alien whose stay in the Netherlands is not lawful is not entitled to reception facilities. This provision applies to asylum seekers whose applications have been unsuccessful. Also, a second or further application for asylum does not confer a new entitlement to reception facilities. An exception to that basic principle can nevertheless be made if, inter alia, the asylum seeker finds him or herself in extremely compelling humanitarian circumstances (zeer schrijnende humanitaire omstandigheden, Chapter C5/20.4 of the Aliens Circular 2000). The question whether such circumstances exist is always considered after it has been ascertained that the second or further application for asylum will not be processed in the accelerated procedure. It may also be considered if a person, who has submitted a second or further application, requests reception facilities due to extremely compelling humanitarian circumstances. The COA decides whether or not reception facilities will be provided. Appeal lies against a decision to refuse reception, but also against a failure to decide (or to decide within a reasonable time) on a request for reception facilities. The lodging of an appeal does not suspend the denial of reception facilities, but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings. In a decision of 28 April 2004 (nr. AWB 04/4053 COA), the provisional-measures judge of the Regional Court of The Hague, sitting in Alkmaar, noted that the legislator had omitted to regulate whether or not an entitlement to reception facilities existed during the period for which an interim measure pursuant to Rule 39 of the Rules of Court was in place. The judge considered that, as a result of the application of Rule 39, the petitioner could not be said to be under an obligation to leave the country and his stay in the Netherlands was, therefore, lawful. In addition, the denial of reception facilities – which was aimed at encouraging a departure from the Netherlands – might detract from the effectiveness of the interim measure. In these circumstances, the judge perceived cause to grant a provisional measure to the effect that the COA should provide the petitioner with reception facilities pending the proceedings on his appeal against the COA’s refusal of such facilities. In different proceedings, the Administrative Jurisdiction Division of the Council of State held on 25 May 2004 that, as long as an interim measure pursuant to Rule 39 of the Rules of Court is in place, the stay in the Netherlands of the person concerned is lawful (nr. 200400863/1). Policy is based on official country reports (ambtsberichten), periodically drawn up by the Netherlands’ Ministry of Foreign Affairs. The country report on Iran of 21 December 1999 described how student demonstrations followed parliamentary discussions on a bill relating to the press and the closure of a newspaper on 7 July 1999, which got out of hand when riot police, security forces and units of the fundamentalist Ansare Hezbollah raided the campus of the University of Teheran and used force against the students, resulting in a number of deaths and hundreds of injuries. The violent attack on the students led to mass street protests in several Iranian cities, where demonstrations for greater openness and freedom were held over a number of days. These led to violent confrontations with the police, security services and groups supporting conservative forces. President Khatami finally banned all demonstrations. It appeared that 1,500 students were arrested. At the time of the country report, 200 were still thought to be in detention. The four “instigators” of the protests had allegedly been condemned to death, although the Iranian Government neither confirmed nor denied such reports. Prison terms varying from a few months to thirteen years (for one of the “instigators”) were imposed. The country report concluded that the human rights situation in Iran remained a source of concern, despite a few positive developments. Notably those groups or individuals perceived in Iran as a threat or potential threat to a society based on Islamic values and standards were at risk of becoming victims of human rights violations. The policy formulated on the basis of this country report meant that inter alia the following persons were eligible for consideration as possible refugees: – persons viewed, whether individually or as a member of a particular group, as a threat, or a potential threat, to a society based on Islamic values and standards; and – intellectuals, and in particular writers, journalists or publishers, who were viewed as a threat, or a potential threat, to society on the basis of their publications or other utterances in Iran. According to the country report of 30 August 2000, students in Iran were relatively quiet in the period leading up to the commemoration on 8 July 2000 of the riots of July 1999. However, a demonstration on 8 July 2000 that was intended to be peaceful got completely out of hand. The police intervened when the marchers began to shout slogans, students were arrested and fights broke out. Many participants in the demonstration at the University of Teheran were in fact ordinary people, rather than students. On 11 February 2000, Ayatollah Khamenei announced an amnesty for 10,000 people who had been involved in the riots of July 1999. The death penalty was imposed on one of the participants in the student disturbances but not carried out, the sentence being commuted to 15 years’ imprisonment. The three “instigators” of the student unrest of July 1999, who had been arrested on 26 July 1999, and on 1 March 2000 sentenced to long terms of imprisonment, were acquitted on appeal in mid-July 2000. The country report of 24 August 2001 showed that the human rights situation in Iran had deteriorated in the second half of 2000 and the first few months of 2001. The persecution of reformist intellectuals continued unabated. Nevertheless, in July 2001 it was reported in the press that the speaker of the Iranian parliament had requested Ayatollah Khamenei to grant an amnesty to the last 17 students still in prison because of their activities during the student revolt. Only ten students from this group – the ones who had received the heaviest sentences – were still in prison at the time of the country report. They were primarily members and sympathisers of a student union that was viewed with suspicion by the regime. The most recent country report, that of 10 February 2003, states that, as far as could be ascertained, six of the students imprisoned for taking part in the riots of July 1999 were still in prison, four students having been released in 2002. In the light of the most recent developments in Iran, as described in the country reports, Netherlands policy on admitting Iranian nationals has remained largely unchanged. Every asylum seeker from Iran must still demonstrate that the personal facts and circumstances of his or her case – viewed objectively – justify a fear of persecution as defined in refugee law or might lead to the conclusion that he or she would be subjected to treatment contrary to Article 3 of the Convention if returned. Furthermore, the mere fact of a person being a student is no reason to fear persecution by the Iranian authorities. In order to be eligible for a residence permit, students who have taken part in demonstrations or riots, or who occupy important positions within the student movement, have to establish that, because of that fact, they personally are viewed with suspicion by the authorities. Moreover, not every form of suspicion immediately leads to the conclusion that there can be said to be persecution within the meaning of refugee law. On 25 February 2004 the United States Department of State released the 2003 Country Report on Human Rights Practices in Iran. It stated inter alia: “The Government’s poor human rights record worsened, and it continued to commit numerous, serious abuses. ... Continuing serious abuses included: summary executions; disappearances; torture and other degrading treatment, reportedly including severe punishments such as beheading and flogging; poor prison conditions; arbitrary arrest and detention; lack of habeas corpus or access to counsel and prolonged and incommunicado detention. Citizens often did not receive due process or fair trials. The Government infringed on citizens’ privacy rights, and restricted freedom of speech, press, assembly, association and religion. ... During a wave of student protests in June, vigilantes beat many protestors, and police arrested approximately 4,000 persons (both protestors and vigilantes), according to Government figures shortly after the protests. The Government banned demonstrations planned for July 9 to commemorate the killing of several students by security forces in demonstrations held in 1999 and arrested more student activists at that time.” In its Annual Report 2004, covering events from January to December 2003, Amnesty International noted with respect to Iran inter alia: “Scores of political prisoners, including prisoners of conscience, continued to serve sentences imposed in previous years following unfair trials. Scores more were arrested in 2003, often arbitrarily and many following student demonstrations. ... The development and fulfilment of human rights in Iran were adversely affected by the political stalemate between supporters and opponents of reform. ... Students convicted and imprisoned after student demonstrations in 1999 were reported to have been ill-treated in custody. In several cases, they faced new charges, including some relating to defamation and insult, reportedly based on statements made in prison or given to the media while on temporary leave from prison.”