JOESOEBOV v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
1. The applicant, Mr Ibrahim Joesoebov, was born in Georgia in 1972 and is currently living in the Netherlands. At the time of the introduction of the application he stated that he was an Azerbaijani national. He was represented before the Court by Mr M.A. Collet, a lawyer practising in Rotterdam. The Dutch Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Netherlands Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties and some of which are in dispute, may be summarised as follows. 3. On 17 June 2000, the applicant reported to the Netherlands authorities for the purposes of seeking asylum. During his interviews with the Netherlands immigration authorities in the course of which he objected to assistance by an Azeri-speaking interpreter and chose to be assisted by a Russianspeaking interpreter, he stated that he was an Azerbaijani national, that he was born in Georgia – then a part of the former Soviet Union – and that he was of Azerbaijani ethnic origin. The applicant’s parents and three adult siblings, who were all born in Georgia, were living in Baku. 4. On 5 July 2000, the applicant filed a formal asylum request and the immigration authorities conducted a first interview with him on the same day. On 21 August 2000 the applicant filed a written account of his reasons for seeking asylum. He submitted an addition to this written account on 6 October 2000. The immigration authorities conducted a second interview with the applicant on 11 October 2000. By letter of 24 October 2000, the applicant availed himself of the possibility to submit corrections and additions to the report of this second interview. 5. The applicant gave the following account in support of his asylum application. He had lived in Georgia until 1989 and in Russia from 1989 until April 1993. He had received military training from 1990 to 1993 in Russia. In May 1993, following the upheaval in Russia, the applicant went to live in Baku, where he served in the Ministry of National Security of the Republic of Azerbaijan in an anti-terrorism unit, which also specialised in combating organised crime. The applicant participated in a number of operations. 6. In June 1993 the applicant was involved in an incident in the context of a professional assignment which resulted in him being imprisoned. He was released after two weeks following a changeover in power. 7. The applicant resumed his work for the Ministry of National Security, in which he was, amongst other things, involved in arresting people and handing these over to the Ministry’s investigation department, and in an undercover anti-corruption operation. He left the Ministry in October 1999. 8. Over the years, the applicant had become increasingly disillusioned and frustrated with the political system and the way the department where he worked was being used to suppress democracy. That department was supposed to battle terrorism and foreign interventions, but in practice it was used to arrest innocent civilians who stood in the way of a corrupt Government. He twice tried to resign but this was not accepted. In May 1999 his boss told him people could only leave the service if they retired or died. After this, his life became unbearable. His colleagues no longer trusted him. He had never held his own passport. The Ministry of National Security had held – but never given to him – a service passport for him which had been used by others on his behalf during a short stay in Turkey in 1994. He was very scared as there was nothing more powerful than the Ministry of National Security so he could turn to no-one for protection. He feared the Ministry was looking for a reason to accuse him of something. 9. The applicant left Azerbaijan on 6 October 1999, because on that day he was informed by a friend employed by the Ministry of Foreign Affairs that he was wanted in connection with a failed attack on a rebel leader in 1993. The applicant claimed that he was being searched for by the authorities of Azerbaijan and also that he risked a lengthy term of imprisonment because he had left the Ministry of National Security and Azerbaijan without permission and was thus considered to be a deserter. 10. On 29 November 2000, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request and, after an ex officio examination, further held that there were no reasons to grant the applicant a residence permit for compelling reasons of a humanitarian nature. 11. On 30 January 2001 the applicant lodged an objection (bezwaar) against this decision. He filed additional grounds for his objection and further documents in substantiation of his account by letters 9 and 28 February 2001, 20 March 2001, 3 and 11 April 2001, 17 May 2001, 20 July 2001 and 19 April 2002. 12. On 23 April 2001, the applicant requested the Regional Court (rechtbank) of The Hague to order a stay of expulsion by way of a provisional measure (voorlopige voorziening) pending the proceedings on his objection. This request was granted on 29 May 2002 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Utrecht, who ordered that the applicant should not be expelled from the Netherlands until four weeks after the determination of his objection. 13. By letter of 26 June 2002 the applicant filed further additional grounds for his objection. On 25 November 2002, he was heard on his objection before an official board of inquiry (ambtelijke commissie). 14. On 2 December 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice since 22 July 2002, informed the applicant that his statements gave cause to suspect that Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Convention”) might be applicable to his case, and that for that reasons his case had been transferred to “Unit 1F”. Unit 1F is a team of specialists within the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “IND”) who examine cases in which Article 1F of the Refugee Convention may be applicable. 15. By letter of 4 December 2002, the applicant informed the IND that he considered the decision of 2 December 2002 as unlawful and unjust, and urged a speedy determination of his asylum claim. 16. On 13 January 2003 the applicant submitted translations of a number of documents further to substantiate his account. On 5 June 2003 the immigration authorities conducted an additional interview with the applicant which mainly concerned the nature of his work for the Azerbaijani Ministry of National Security, and he was given the possibility to submit corrections and additions to the report of this interview. By letter of 23 June 2003 the applicant stated he did not wish to do so. 17. On 19 September 2003 the Minister for Immigration and Integration rejected the applicant’s objection and maintained the negative decision of the asylum request by holding Article 1F of the 1951 Convention against the applicant on account of his work for the Azerbaijani Ministry of National Security, which decision was based on the prescribed and so-called “personal and knowing participation” test. In this decision, the Minister further decided not to grant the applicant ex officio a residence title on account of the duration of the still pending proceedings on his asylum request (tijdsverloop in de asielprocedure). The applicant’s objection against the latter aspect of the decision of 19 September 2003 was rejected by the Minister on 18 March 2004. On 23 March 2004 the applicant filed an appeal with the Regional Court of The Hague. 18. The applicant’s appeal against the decision of 19 September 2003 (concerning his asylum request), as supplemented by him on 12 and 21 November 2003, 17 February 2004, 3 and 30 March 2004 and 17 and 27 September 2004, was heard on 8 October 2004 before the Regional Court of The Hague, sitting in Arnhem. 19. In its judgment of 10 November 2004, the Regional Court found that the Minister had correctly held Article 1F of the 1951 Convention applicable to the applicant but quashed the impugned decision for lack of sufficient reasoning in that it did not appear from that decision whether the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion and, if so, whether a continuous withholding of a residence permit would not be disproportionate. Accordingly it quashed the decision of 19 September 2003 and ordered the Minister to take a fresh decision on the applicant’s objection. 20. On the same day, the Regional Court rejected in a separate judgment the applicant’s appeal of 23 March 2004. 21. On 14 September 2005, an additional hearing on his objection of 30 January 2001 was conducted with the applicant before an official board of inquiry, including the question whether his expulsion to Azerbaijan would be contrary to Article 3 of the Convention. 22. On 13 February 2006 the applicant was notified in person of the Minister’s intention to declare him an undesirable alien entailing the imposition of an exclusion order, and he was given the opportunity to respond to this. He did so in person on 13 February 2006, as well as by letters of 13 and 24 February 2006. 23. By decision of 10 March 2006, the Minister declared the applicant an undesirable alien and imposed the pertaining exclusion order. The Minister noted that the applicant had been denied asylum in application of Article 1F of the 1951 Convention and that, in its judgment of 10 November 2004, the Regional Court of The Hague had accepted that decision as correct. The Minister held that the application of Article 1F of the Refugee Convention against the applicant stood in the way of his being granted a residence permit since he was to be considered as a danger to public order and that his exclusion from the Netherlands was also in the interest of the Netherlands’ international relations. The Minister lastly found that there were insufficient grounds for assuming that the applicant, if removed to his country of origin, would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by Article 3 of the Convention. 24. In a separate decision also taken on 10 March 2006, the Minister rejected the applicant’s objection of 30 January 2001. She maintained her decision to hold Article 1F of the 1951 Convention against the applicant. As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to his country of origin, would be exposed to a real risk of being subjected to treatment prohibited by the this provision. 25. The Minister noted that the applicant had not submitted any documents in support of his claim that he was searched for by the Azerbaijani authorities for having abandoned his work for the national security agency in 1999. The Minister further noted that the applicant had submitted two documents, issued by the authorities of Azerbaijan, allegedly showing that he was being searched for in Azerbaijan. One document was a protocol, drawn up by the police on 1 May 2002, relating to the opening of a criminal inquiry into the commission of the offence defined in section 256 of the Azerbaijani Criminal Code which concerns “illegal extraction of fish and other water animals”. The other document was a summons dated 29 August 2002, ordering the applicant to hand in on that same day his passport at police station no. 5, failing which he would be held liable under section 181 of the Azerbaijani Criminal Code which concerns “burglary” defined as obtaining through violence property not belonging to the perpetrator. The Minister considered that, apart from the odd and unexplained fact that both documents had been drawn up in 2002 whereas the applicant had already left Azerbaijan in 1999, these documents did not tally with the applicant’s asylum account to the effect that he risked treatment in breach of Article 3 on account of having left his work without permission or for his involvement in the failed attack on the rebel leader in 1993. In so far as the applicant further claimed that he risked such treatment because the Azerbaijani authorities assumed that he was keeping contacts with two of his former superiors who were residing abroad and who were planning to seize power in Azerbaijan, the Minister found that this had remained wholly unsubstantiated and was based on speculations by the applicant. The Minister further rejected as unsubstantiated and not plausible the applicant’s claim that his relatives were encountering problems from the side of the authorities of Azerbaijan in order to exert pressure on the applicant. 26. On 23 March 2006, the applicant filed an objection with the Minister against the decision to impose an exclusion order on him. On the same day, he filed an appeal with the Regional Court of The Hague against the rejection by the Minister of his objection of 30 January 2001. 27. By judgment of 16 May 2006 and after a hearing held on 4 May 2006, the provisional measures judge of the Regional Court of The Hague, sitting in Dordrecht, rejected as unfounded the applicant’s appeal of 23 March 2006 and his pertaining request for an interim measure. The judge noted that, in its ruling of 10 November 2004, the Regional Court had already accepted the Minister’s decision to hold Article 1F of the 1951 Convention against the applicant. The provisional measure judge further accepted the Minister’s finding that the applicant had not demonstrated that Article 3 would lastingly stand in the way of his expulsion. Referring to constant case law of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State), the provisional measures judge lastly held, in respect of the applicant’s reliance on the right of respect for his private life within the meaning of Article 8 of the Convention, that – given the strict separation under the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000) between an asylum based and a regular residence permit – that arguments based on Article 8 could not be entertained in asylum proceedings but should be made in proceedings on a request for a regular residence permit. 28. In a separate ruling handed down on the same day, the provisional measures judge of the Regional Court also rejected the applicant’s request for a provisional measure (stay of expulsion) for the duration of the proceedings on his objection against the decision to impose an exclusion order on him. 29. On 13 June 2006, the applicant filed an appeal with the Administrative Jurisdiction Division against the judgment of 16 May 2006 in which his appeal of 23 March 2006 had been rejected. On 30 June 2006, the Administrative Jurisdiction Division declared itself not competent to examine this appeal, pursuant to article 120 of the Aliens Act 2000. It noted that the proceedings concerned a decision which had been taken before the entry into force on 1 April 2001 of the Aliens Act 2000, replacing the Aliens Act 1965. Under the latter Act no further appeal lay against a ruling of the Regional Court in asylum proceedings. 30. On 14 April 2008, the applicant was placed in aliens’ detention for removal purposes (vreemdelingenbewaring). In a ruling given on 6 May 2008, in unsuccessful appeal proceedings taken by the applicant concerning his placement in aliens’ detention, the Regional Court of The Hague noted that the Azerbaijani authorities had refused to issue a laissez-passer to the applicant and held that the Netherlands authorities should be given the opportunity to try to obtain the issuance of a laissez-passer from the authorities of Georgia, given the fact that the applicant had been born there. 31. On 27 October 2008, the Minister rejected the applicant’s objection against the decision to impose an exclusion order on him. The applicant’s appeal against this decision, including arguments based on Article 3 of the Convention, was rejected on 4 August 2009 by the Regional Court of The Hague, sitting in Dordrecht. Although the applicant could have appealed this decision before the Administrative Jurisdiction Division, he did not do so. 32. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” 33. The application was introduced on 9 November 2006 and registered on 21 December 2006. 34. On 23 June 2008, at the applicant’s request, the President of the Third Section decided under Rule 39 of the Rules of Court to indicate to the Netherlands Government not to expel the applicant pending the proceedings before the Court. The President further decided, under Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 35. On the basis of the applicant’s stated nationality, the Government of Azerbaijan were invited, pursuant to Article 36 § 1 of the Convention, to inform the Court whether they wished to exercise their right to submit written comments. On 10 September 2008, the Azerbaijani Government informed the Court that they wished to avail themselves of that right. The applicant and the respondent Government were informed accordingly. 36. On 23 September 2008, the respondent Government informed the Court of the proceedings still pending on the applicant’s challenge of the decision to impose an exclusion order on him, and requested leave to submit their observations after a final decision in these proceedings had been given. On 2 October 2008, the President accepted this request and fixed a new time-limit for the submission of the observations by the Netherlands Government, namely within six weeks after the final decision in the proceedings referred to by the Government. 37. On 25 September 2009, the Netherlands Government requested a further extension until 24 November 2009 of the time-limit to file observations. They explained that, as the applicant had not availed himself of the possibility to file an appeal with the Administrative Jurisdiction Division against the ruling of 4 August 2009 of the Regional Court of The Hague, sitting in Dordrecht, the latter judgment had become final on 1 September 2009 implying that the Government should file their observations within six weeks from that date. On 13 October 2009, the President acceded to this request. 38. The Government’s observations were submitted 24 November 2009. The applicant’s observations in reply were submitted on 14 January 2010. In those observations in reply, the applicant denied that he was a citizen of Azerbaijan and claimed that he was stateless. 39. On 2 February 2010, the President invited the Government of Azerbaijan to inform the Court whether or not the applicant was a national of Azerbaijan and, provided they would acknowledge that citizenship, to file any written comments they wished to make on the issues arising in the case. 40. On 2 March 2010, the Government of Azerbaijan informed the Court that the applicant was not a national of the Republic of Azerbaijan but nevertheless submitted written comments. 41. On 26 March 2010, the Azerbaijani Government were informed that, as the applicant was not a citizen of Azerbaijan, they were not automatically entitled to intervene as a third party in the proceedings on the basis of Article 36 § 1 of the Convention but, given that their comments were mainly of a factual nature, that the President had interpreted their letter of 2 March 2010 as a request for leave to intervene within the meaning of Article 36 § 2 of the Convention and had granted this request. 42. On the same date, the respondent Government, the applicant and the Government of Azerbaijan were invited to submit further information of a factual nature, and the President further accepted the respondent Government’s request for leave to submit additional observations. 43. On 27 April 2010, the Azerbaijani Government submitted the requested factual information. The respondent Government and the applicant filed additional submissions on 7 May 2010.