Information Note on the Court’s case-law No. 180
December 2014
H. and J. v. the Netherlands (dec.) - 978/09 and 992/09
Decision 13.11.2014 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Use in criminal prosecution for torture of statements made on confidential basis in asylum proceedings: inadmissible
Facts – The applicants, Afghan nationals, were high-ranking officers in the former military-intelligence service of the communist regime (KhAD/WAD). They requested asylum in the Netherlands shortly after the fall of that regime. In the course of the asylum proceedings, they were required to state the truth about their reasons for seeking asylum, including their careers in KhAD/WAD. Their requests for asylums were refused but they were not deported because they risked being subjected to treatment proscribed by Article 3 of the Convention in Afghanistan. They were, however, prosecuted for offences they had committed there. Both men were convicted of war crimes. H. was also convicted of complicity in torture.
In their applications to the European Court, the applicants complained under Article 6 § 1 of the Convention that they had been convicted on the basis of incriminating statements they had made in the asylum proceedings under coercion and in return for a promise of confidentiality, and that they had been confronted with their statements during the criminal investigation.
Law – Article 6 § 1: Although they were denied refugee status, neither applicant was deported or extradited. Instead, they were allowed to remain in the Netherlands and thus to enjoy the protection of the Netherlands State de facto. The Netherlands and Afghanistan were both parties to the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War Conventions. Under the aut dedere aut iudicare principle* enshrined in these conventions, it was not merely the right but the bounden duty of the Netherlands to prosecute the applicants for any acts of torture which they might have committed elsewhere.
As regards the use in the criminal proceedings of the statements made by the applicants in the asylum proceedings, the applicants had entered the Netherlands of their own accord, asking for its protection. To that end, they had been required to satisfy the Netherlands Government that their stated fear of persecution was well-founded. Since they bore the burden of proof, there was nothing incongruous in the Government’s demanding the full truth from them. The suggestion that their statements to the immigration authorities were extracted under coercion was therefore baseless.
The promise of confidentiality in asylum proceedings is intended to ensure that asylum-seekers’ statements do not come to the knowledge of the very entities or persons from whom they needed to be protected. Conversely, a practice of confidentiality appropriate to the processing of asylum requests should not be allowed to shield the guilty from condign punishment. Consequently, once the applicants’ statements were in the Government’s possession the deputy minister had not been precluded by Article 6 of the Convention from transferring them to the public prosecution service, another subordinate Government body, to be used within its area of competence.
Finally, the fact that the applicants were confronted during the criminal investigation with the statements they had made during the asylum proceedings had no bearing on the fairness of the criminal proceedings. The applicants were heard under caution and enjoyed the right to remain silent and neither applicant ever admitted torture, or any other crimes, either during the asylum proceedings or during the criminal proceedings. It was not, therefore, the case that they were induced to make a confession that was afterwards used to ground their conviction (compare Gäfgen v. Germany [GC], 22978/05, 1 June 2010, Information Note 131).
Conclusion: inadmissible (manifestly ill-founded).
* The requirement for States either to extradite or themselves prosecute individuals suspected of serious crimes such as torture or war crimes committed outside the jurisdiction.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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