EHRM, 05-07-2016, nr. 29094/09

On 25 July 2003 the applicant entered the Netherlands where on 19 August 2003 he applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (‘the Refugee Convention’) and/or treatment in breach of Article 3 of the Convention. On 20 August 2003, he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). He stated, inter alia, that he was an Afghan national of Hazara origin, that he came from Kabul and that he had travelled to the Netherlands via Pakistan, Iran and Germany.

On 21 August 2003 the applicant was interviewed about his reasons for seeking asylum (nader gehoor). He stated that he feared persecution and ill-treatment on account of his communist past as a former member of the communist People's Democratic Party of Afghanistan (‘the PDPA’) and for having served as a volunteer in the Revolutionary Guard (Sepah Enghelab). He further claimed that he risked ill-treatment at the hands of mujahideen party Jamiat-e Islami for having been involved between 1992 and 1994 with the rival Hazara-dominated, Hezb-e Wahdat party and, additionally, at the hands of a Mr S., whom he had captured and ill-treated during an interrogation conducted in the context of his work for Hezb-e Wahdat. He also feared problems from the side of Hezb-e Wahdat for having stopped working for them.

The applicant stated that he had joined the youth branch of the PDPA in 1978 and that in 1981 he had served as a volunteer for twenty days in the Revolutionary Guard. He had been discharged after he had stepped on a mine during combat. He further stated that in 1984 he had started to work for the Ministry of Trade in Kabul, at the department for government stores, and that in 1989 he had given a television interview in which he had criticised the then Minister of Trade. This interview had not been broadcast in 1989 but only in mid-May 1992, after the mujahideen had seized power in Afghanistan. The day after it had been broadcast, the applicant had been arrested by the mujahideen faction Ittehad-al-Islami (Islamic Union) then led by Abdul Rasul Sayyaf. In his opinion they had been under the impression, given that he had dared to criticise the Minister of Trade, that he was an important member of the Communist Party. He had been released after ten days in a prisoner exchange operation mediated, at the request of the applicant's parents, by Mr M., an influential person of Hazara origin.

In return, the applicant had had to work for Hezb-e Wahdat. He had worked as a representative of the (military) Division 95 of Hezb-e Wahdat at the West Kabul peace commission in which Jamiat-e Islami, Ittehad-al-Islami and Harakat-e-Islami had also been represented. His tasks had included trading prisoners and seized goods, and mediating between parties. He had also been responsible for preventing members of Hezb-e Wahdat's Central Committee from defecting and for preventing members of other factions from infiltrating Hezb-e Wahdat. In the course of carrying out these duties and if circumstances so warranted, he had been under orders to take people secretly into custody. One of the persons taken in custody, Mr S., had been interrogated by the applicant himself, who had ill-treated Mr S. during interrogation. After Burhanuddin Rabbani and Ahmad Shah Massoud had taken over control of the Afshar district in West Kabul, the applicant had been arrested and detained again by Ittehad-al-Islami in December 1992/January 1993. He had been released in a prisoner exchange organised by Hezb-e Wahdat.

The applicant had continued his work for the peace committee of Hezb-e Wahdat until December 1994, when this party had been defeated and retreated to Bamyan. The applicant had stayed behind in Kabul and had not been persecuted by ‘Khalili’ (see paragraph 39 below). However, fearing Jamiat-e Islami and the Taliban, the applicant had then gone into hiding — moving around between Kabul and the villages of Siah Khak and Sar Shesmeh in the province of Wardak — until December 2001, when American troops had arrived. He had been arrested on 20 or 21 March 2002 by Jamiat-e Islami, then under the leadership of General Fahim. The applicant had been tortured several times during his incarceration. Mr S. had been present on one of those occasions. The applicant had been told by interrogators that he had been detained because he was a communist or a convert. He also thought that his arrest had something to do with Mr S. The applicant had managed to escape from prison after 45 days with the help of a guard — who like the applicant was a former communist — to whom the applicant had paid three thousand United States dollars. This guard had set up a mock execution outside the prison, which had enabled the applicant to escape. This guard had told the applicant that he should leave Afghanistan forever. After his escape, the applicant had first hidden in his house in Kabul for about 15 days and had subsequently stayed with a distant relative until he had left Afghanistan for Pakistan in May 2002.

On 18 September 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) informed the applicant that his case had been transmitted to the 1F Unit (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 47–49, 30 June 2015) in order for it to examine whether Article 1F of the 1951 Refugee Convention should be applied to the applicant's asylum request.

On 5 February 2004 the 1F Unit conducted a supplementary interview (aanvullend gehoor) with the applicant. During this interview, he declared, inter alia, that in 1981, as a member of the Revolutionary Guard, he had participated in a purge action — ordered by the PDPA Central Committee and the Ministry of Defence — aimed against persons active on behalf of Hezb-e Islami and Jamiat in a specific area and that prisoners of war had been handed over to the former Afghan communist security service, KhAD/WAD (Khadimat-e Atal'at-e Dowlati/Wezarat-e Amniyat-e Dowlati). He had become disabled when the tank on which he had been standing had hit a mine. The applicant also stated that, during the wars, Hezb-e Wahdat had plundered houses, seized privately owned cars and physically tortured persons. It was correct that Hezb-e Wahdat had committed many crimes and had shed much blood. He further related how he had interrogated and hit Mr S. at the Hezb-e Wahdat headquarters in Kabul. He also stated that, at present, he had no proof that he was being searched for but that it was clear to him, having been released upon payment of a bribe, that he could not show himself in Afghanistan.

On 21 April 2005 the Minister for Immigration and Integration issued notice of her intention (voornemen) to reject the first applicant's asylum application and to apply Article 1F of the 1951 Refugee Convention. The Minister found it established, given his consistent and detailed statements, that the applicant had worked for the Revolutionary Guard and Hezb-e Wahdat but also found that, in his account to the Netherlands authorities, he had in part misrepresented the facts, had sought to trivialise his activities for Hezb-e Wahdat and had withheld important information.

The nature of the applicant's work, and the contents of an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, entitled ‘Security Services in Communist Afghanistan (1978–1992), AGSA, KAM, KhAD and WAD’ (‘Veiligheidsdiensten in communistisch Afghanistan (1978–1992), AGSA, KAM, KhAD en WAD’; DPC/AM 663896) and an official report, drawn up on 23 June 2000 by the Ministry of Foreign Affairs, on Hezb-e Wahdat (DPC/AM-681499), had given cause to consider whether Article 1F of the 1951 Convention was applicable to the applicant's asylum claim.

In her notice of intention, the Minister analysed, on the basis of elaborate argumentation based on various international materials and on the prescribed and so-called ‘knowing and personal participation’ test, the nature of the acts imputed to the applicant in the framework of Article 1F of the 1951 Refugee Convention, as well as his individual responsibility under that Convention. The Minister noted, inter alia, that the applicant had worked for a part of the PDPA Government, the Revolutionary Guard, which had collaborated with the KhAD and found that it was justified to conclude that the applicant had known or should have known about the criminal character of the KhAD and that its crimes had formed part of a widespread or targeted attack aimed against the civilian population. Having regard to the official report of 29 February 2000 (see paragraph 15 above), the Minister further found that the cruel character of the KhAD had been commonly known. The Minister further did not believe that the applicant had been ignorant of the criminal character of Hezb-e Wahdat when he had started to work for it as this had been widely known at the material time. Relying on the official report of 23 June 2000 (see paragraph 15 above), the Minister underlined that Hezb-e Wahdat had been considered during the Afghan civil war to be one of the most violent groups, not only because of its militia's actions on the battle field and merciless liquidation of its political opponents, but in particular because of its militia's crimes against the civil population of Afghanistan and for having instilled a true climate of terror in the country. The Minister lastly found it established that the applicant himself had committed acts of torture on the person of Mr S.

As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to Afghanistan, would be exposed to a real risk of being subjected to treatment prohibited by this provision. In reaching this finding, the Minister took into account, inter alia, that the applicant had stayed for about three months in Pakistan and about eight months in Iran without having sought assistance in these countries from, for instance, the United Nations High Commissioner for Refugees (‘UNHCR’), that he had not applied for asylum when he had been apprehended by the police in Germany, and that he had not reported immediately to the immigration authorities after his arrival in the Netherlands.

On 17 June 2005 the applicant submitted written comments (zienswijze) on the Minister's intended decision. On 19 October 2005 the Minister rejected the applicant's asylum application, confirming the reasoning set out in her notice of intention of 21 April 2005 and rebutting the applicant's written comments.

The applicant's appeal against this decision was rejected on 25 January 2007 by the Regional Court (rechtbank) of The Hague, sitting in Roermond. It held in respect of the applicant's activities as a fifteen-year-old adolescent volunteer for the Revolutionary Guard that, according to the applicable policy in respect of child soldiers, the Minister had not adequately reasoned her decision finding ‘knowing participation’ in respect of this part of the applicant's account. However, on the basis of the other elements of the account, it accepted the decision of the Minister to deny the applicant asylum by applying Article 1F of the Refugee Convention against him. It further held that it had not been established that the applicant — if expelled to Afghanistan — would be exposed to a risk of being subjected to treatment proscribed by Article 3 of the Convention from the side of Jamiat-e Islami on the basis of the general security situation in Afghanistan, or on the basis of his Hazara ethnic origin.

The applicant, who from his first interview was assisted by a lawyer in these asylum proceedings, could have filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), but did not do so. Consequently, the ruling of 25 January 2007 became final when the four week time-limit for filing an appeal with the Administrative Jurisdiction Division expired.

On 25 May 2007 the applicant was informed by the Deputy Minister of Justice (Staatssecretaris van Justitie) of the intention (voornemen) to declare him an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring) in accordance with section 67 § 1 (e) of the Aliens Act 2000 (Vreemdelingenwet 2000), following the decision to hold Article 1F of the Refugee Convention against him in the asylum procedure.

The actual decision to impose this exclusion order on the applicant was taken on 24 September 2007 by the Deputy Minister of Justice. As regards Article 3, the Deputy Minister did not find it established that the applicant would be at risk of being subjected to treatment contrary to this provision in Afghanistan or that there were any obstacles of a medical nature to his removal to Afghanistan. Further noting that the applicant did not have any relatives or other persons in the Netherlands with whom he had a family life within the meaning of Article 8 of the Convention, the Deputy Minister further found that the exclusion order did not constitute an interference with the rights guaranteed by this provision.

The applicant challenged this decision in administrative law proceedings. The last (for the applicant negative) decision in these proceedings was taken on 10 February 2009 by the Regional Court of The Hague, sitting in Maastricht. It noted that, in its ruling of 25 January 2007, which had obtained the force of res iudicata, the Regional Court of The Hague, sitting in Roermond, had concluded that there existed serious reasons for assuming that the applicant had been involved in acts referred to in Article 1F of the Refugee Convention. As the Deputy Minister had enjoyed a discretionary power in deciding whether or not to impose an exclusion order, it had to be assessed whether in deciding to impose that order, the competing interests involved had been carefully balanced. In view of the reasons given in the impugned decision and the applicant's submissions, the Regional Court of The Hague, sitting in Maastricht, accepted the Deputy Minister's decision that the applicant's personal interests were outweighed by the general public's interests pursued by the exclusion order.

In so far as the applicant had invoked Article 3 of the Convention, the Regional Court noted that in its ruling of 25 January 2007 it had already found that the applicant had not demonstrated that his expulsion to Afghanistan would expose him to a risk of a violation of his rights under that provision. It found that also in the proceedings at hand the applicant had not submitted facts or referred to circumstances on the grounds of which it should be accepted as plausible that he would risk a violation of his rights under Article 3 of the Convention if he were to be expelled to Afghanistan. As regards Article 8, the Regional Court noted that it appeared from the applicant's notice of appeal (beroepschrift) that it was not in dispute between the parties that the applicant could not claim a right of residence on the basis of Article 8 of the Convention and that it was thus not necessary to consider this point any further.

The applicant, who was represented by a lawyer throughout these proceedings, could have filed a further appeal with the Administrative Jurisdiction Division, but he did not do so. Consequently, the ruling of 10 February 2009 became final after the expiry of the four-week time-limit for filing an appeal with the Administrative Jurisdiction Division.

The relevant domestic policy, law and practice in respect of asylum seekers from Afghanistan in respect of whom Article 1F of the 1951 Refugee Convention has been found to be applicable have been summarised in A.A.Q. v. the Netherlands ((dec.), no. 42331/05, §§ 37–52, 30 June 2015).

The most recent official country assessment report on Afghanistan was drawn up by the Netherlands Ministry of Foreign Affairs on 17 September 2014. The relevant parts of this report read:

On 7 March 2013 Australia's Migration Review Tribunal and Refugee Review Tribunal issued a background paper, Afghanistan; Political Parties and Insurgent Groups 2001–2013. As regards Jamiat-e Islami Afghanistan (leader: Salahuddin Rabbani), it reads:

It states in respect of Hezb-e Wahdat:

The background paper also contains information on, inter alia, those four organisations, namely:

On 27 May 2003 the Resource Information Center (‘RIC’) of the US Bureau of Citizenship and Immigration Services published ‘Afghanistan: Information on Hezb-e Wahdat’. Under the heading ‘The current human rights situation for former members of Hezb-e Wahdat who return to Afghanistan’, it reads:

In July 2003, UNHCR issued an Update of the Situation in Afghanistan and International Protection Considerations (‘the July 2003 Update’). This document reads:

As regards ‘persons associated or perceived to have been associated with the communist regime, as well as others who have campaigned for a secular state’, it states:

Persons who had been involved in the former Hezb-e Wahdat were not included in the potential risk profiles set out in the July 2003 Update.

In December 2007 UNHCR issued Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers, setting out categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time. These categories included former PDPA members and officials of the former communist regime unable to rely on protection through family, tribal or political ties. Persons who had been involved in Hezb-e Wahdat were not included in the categories of persons at risk but were mentioned as a category of persons in respect of whom exclusion considerations under Article 1F of the Refugee Convention might arise in individual claims for refugee status.

In July 2009, UNHCR issued Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, which again set out categories of Afghans considered to be particularly at risk in Afghanistan at that time. Those categories included high-ranking members of the former PDPA associated or perceived to be associated with the human rights violations of the communist regime in Afghanistan between 1979 and 1992 who did not enjoy the protection of influential individuals and/or factions. Persons who had been involved in Hezb-e Wahdat were not included in the categories of persons at risk but were again mentioned as a category of persons in respect of whom exclusion considerations under Article 1F of the Refugee Convention might arise in individual claims for refugee status.

On 17 December 2010, UNHCR issued updated Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (‘the December 2010 UNHCR Guidelines’). As in the case of the previous guidelines, persons who had been involved in Hezb-e Wahdat were not included in the categories of persons at risk of persecution, whereas members of Islamic parties with armed factions, such as Hezb-e Wahdat (both branches and all nine parties that formed Hezb-e Wahdat), were mentioned as a category of persons requiring careful scrutiny where it concerned exclusion considerations under Article 1F of the Refugee Convention.

The December 2010 UNHCR Guidelines further observed, inter alia:

The most recent update of the UNHCR Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan was released on 6 August 2013 (‘the August 2013 UNHCR Guidelines’) and replaced the December 2010 UNHCR Guidelines. The August 2013 UNHCR Guidelines do not include former PDPA members or persons who had been involved in Hezb-e Wahdat in the categories of persons at risk of persecution but do mention members of Islamic parties with armed factions, such as Hezb-e Wahdat (both branches, and all nine parties that formed Hezb-e Wahdat), as a category of persons requiring careful scrutiny where it concerns exclusion considerations under Article 1F of the Refugee Convention.

In respect of the Hazaras, cited as one of the (minority) ethnic groups whose members may be at risk of persecution or of falling victim to human rights violations, the August 2013 Guidelines read:

The relevant part of the 2015 UNHCR country operations profile on Afghanistan reads:

In January 2016, EASO published a country of origin information report entitled ‘Afghanistan Update Security Situation’. This report, covering the period between 1 November 2014 and 31 October 2015, is an update of a previous report released by EASO in January 2015. It provides, inter alia, a general description of the security situation in Afghanistan, as well as a description of the security situation for each of the 34 provinces and Kabul.

The report states in its relevant parts:

The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as he had not lodged a further appeal with the Administrative Jurisdiction Division against either the judgment of 25 January 2007 or the judgment of 10 February 2009. In addition, the Government noted that the judgment of 25 January 2007 apparently had not led the applicant to submit an application to the Court, as the present case was only introduced on 4 June 2009.

The applicant argued that a further appeal to the Administrative Jurisdiction Division in the asylum proceedings would not have stood any chance of success as the Division would not have reviewed the findings of fact made by the Regional Court of The Hague and that therefore, this did not constitute a domestic remedy which he was required to exhaust. As regards the proceedings on the decision to impose an exclusion order, he had decided not to lodge a further appeal with the Administrative Jurisdiction Division, as the judgment of 10 February 2009 concerning this exclusion order had been based mainly on the judgment of 25 January 2007 concerning his asylum request, which had become final.

The Court considers that there is a close connection between the Government's argument as to the exhaustion of domestic remedies and the merits of the complaints made by the applicant under Article 13 of the Convention in conjunction with Article 3. It therefore finds it necessary to join this objection to the merits. The Court further finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that no other reasons for declaring the complaints under Articles 3 and 13 inadmissible have been established. They must therefore be declared admissible.