K.K.C. v. THE NETHERLANDS

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58964/00
by K.K.C.
against the Netherlands

The European Court of Human Rights, sitting on 3 July 2001 as a Chamber composed of

MrsE. Palm, President,
MrsW. Thomassen,
MrL. Ferrari Bravo,
MrC. Bîrsan,
MrJ. Casadevall,
MrB. Zupančič,
MrT. Panţîru, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application introduced on 7 June 2000 and registered on 13 July 2000,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr K.K.C., is a Russian national of Chechen origin, born in 1969 and currently living in the Netherlands.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In February 1992, after ex-General Dzhokhar Dudajev had come to power in Chechnya, the applicant joined the so-called “Chechen army”. After first having served as an aide-de-camp to Lieutenant V., the applicant was appointed commander of a construction battalion unit and, in this capacity, took part in the construction of Chechen military installations. In the summer of 1994, the applicant was appointed to an officer’s post in the military intelligence department. The applicant claims that, in the course of these duties, he participated in the capture of a colonel of the Russian Federal Intelligence Service who was held hostage until he was exchanged for a commander of the “Chechen army”.

In 1994, the Chechen opposition began mounting armed resistance against the Chechen government. At some unspecified point in time in 1994, the applicant was appointed commander of an anti-aircraft division of the “Chechen army”.

In October 1994, the applicant was ordered to participate in an action against Chechen opposition forces near Dalinsk. The applicant was given the command of a battalion and, on the basis of an order issued by the chief of staff of the “Chechen army” Aslan Maskhadov, was instructed to open fire on opposition forces. The applicant claims that, after his refusal to carry out this order as he did not wish to shoot at his own people, he was arrested, detained and accused of treason. During the night of 25 to 26 November 1994, when opposition forces attacked Grozny, the applicant claims that he escaped from detention and that, after this had been detected, a search for him was ordered in the course of which Chechen officials came to his mother’s house several times between 26 November and 11 December 1994.

On 11 December 1994, Russian troops arrived in Chechnya. During the subsequent armed conflict between the Russian and Chechen forces, the applicant claims to have remained in hiding in Chechnya.

In 1997, following the death of Dzhokhar Dudajev, Aslan Maskhadov was elected President of Chechnya. On 7 February 1997, the applicant left Chechnya and travelled to the Netherlands where his sister was already living and where, on 15 February 1997, he applied for asylum or, alternatively, a residence permit for compelling reasons of a humanitarian nature.

On 19 August 1997, the Netherlands State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s requests. The applicant filed an objection (bezwaarschrift) with the State Secretary.

On 12 September 1997, the Zwolle Magistrate (politierechter) convicted the applicant of theft committed on 25 May 1997 and imposed a fine of 20 Netherlands guilders (NLG) or, alternatively, one day imprisonment.

On 15 January 1998, the Amsterdam Magistrate convicted the applicant of theft committed on 9 November 1997 and imposed a fine of NLG 480 or, alternatively, nine days’ imprisonment.

On 27 March 1998, the Arnhem Magistrate convicted the applicant of theft committed on 31 July 1997 and imposed a fine of NLG 100 or, alternatively, two days’ imprisonment.

On 28 October 1998, the State Secretary rejected the applicant’s objection (bezwaarschrift) against the decision taken on 19 September 1997. The applicant filed an appeal against this decision with the Hague Regional Court (Arrondissementsrechtbank).

On 3 May 1999, the Almelo Magistrate convicted the applicant of theft committed on 16 October 1998 and sentenced him to two weeks’ imprisonment.

On 5 July 1999, the Almelo Magistrate convicted the applicant of theft committed on 6 May 1999 and sentenced him to two weeks’ imprisonment.

On 20 October 1999, the Hague Regional Court sitting in Zwolle rejected the applicant’s appeal against the State Secretary’s decision of 28 October 1998. It found it not unlikely that the applicant has held a function in the “Chechen army” when Chechnya declared itself independent from Russia and that it could not be excluded prima facie that he had reasons to fear the Chechen rulers for having refused to execute an official order. However, considering that Chechnya is part of the Russian Federation and noting the contents of the official report (ambtsbericht) of 15 August 1996 from the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken), according to which Russian citizens can settle freely anywhere in the Russian Federation, the Regional Court held that the applicant could avoid problems from the side of the Chechens by settling elsewhere in the Russian Federation. It found the applicant’s arguments to the contrary to be insufficient.

The Regional Court doubted the veracity of the applicant’s claim that he had been involved in the capture of a Russian army colonel and, on this ground, feared persecution from the side of the Russian authorities. It noted that the applicant had only mentioned the capture of this colonel after, in the decision of 19 August 1997, it was held that he had an alternative settlement possibility within the Russian Federation. It also did not find it established that there was a risk that the applicant would be arrested by the  Russian authorities with a view to handing him over to the Chechens or that the latter would trace him in the Russian Federation. The Regional Court finally held that, although persons of Chechen origin might experience discrimination in the Russian Federation, it was not established that the applicant’s life elsewhere in the Russian Federation would be untenable. The Regional Court concluded that, in these circumstances, it had not been established that the applicant, if expelled to Russia, would face a real and personal risk of being subjected to treatment in violation of Article 3 of the Convention.

On 13 December 1999, the applicant was ordered to leave the Netherlands before 15 December 1999.

On 30 March 2000, the State Secretary rejected a second request for asylum filed by the applicant on the basis of new facts and circumstances. On the same day, the applicant filed an objection against this decision and, in order to prevent his expulsion, applied for an injunction with the President of the Hague Regional Court.

On 14 April 2000, a hearing took place before the Hague Regional Court. In the proceedings before the Hague Regional Court the applicant relied on a letter of 3 April 2000 in which the State Secretary of Justice informed the Lower House (Tweede Kamer) of Parliament that, given the unclear situation in Chechnya and pending an improvement of the situation of displaced Chechen persons within the Russian Federation, persons of Chechen origin not holding a permit of residency for another area within the Russian Federation would not be expelled.

On 19 April 2000, the Acting President of the Hague Regional Court rejected the applicant’s request for an injunction and, under Article 33 b of the Aliens Act (Vreemdelingenwet), also rejected the applicant’s objection.

The Acting President noted that the applicant’s new submissions concerned the general situation in Chechnya and did not specifically relate to the applicant’s personal situation. Although the Acting President agreed that the general situation in Chechnya had deteriorated, this did not imply that the applicant, having regard to the statements forming the basis of his first asylum request, should now be regarded as being eligible for asylum or a  residence permit on other grounds.

Insofar as the applicant relied on the State Secretary’s letter of 3 April 2000 to the Lower House, the Acting President accepted that, given the applicant’s criminal antecedents, his departure from the Netherlands could not be deferred. On this point the Acting President held that, in accordance with Section A4/4.3.2. of the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire), the State Secretary was under no obligation to balance the interests involved by making an assessment of the offence concerned and that no special circumstances had appeared on the grounds of which the State Secretary should have used his inherent competence to deviate from established policy rules. The President further considered that this policy decision could not be interpreted as an automatic indication that the aliens concerned, if expelled, would be exposed to treatment prohibited by Article 3 of the Convention.

The Acting President concluded that it had not been established that the applicant, if forcibly returned to his country of origin, would be persecuted or run a real risk of being subjected to treatment contrary to Article 3 of the Convention.

On 30 June 2000 an order was issued for the expulsion of the applicant, who had gone into hiding in the meantime.

B.  Relevant domestic law and practice

I.  The Netherlands

The admission, residence and expulsion of aliens are regulated by the Aliens Act (Vreemdelingenwet). Further rules are laid down in the Aliens Decree (Vreemdelingenbesluit) the Regulation on Aliens (Voorschrift Vreemdelingen) and the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire).

The Netherlands authorities pursue a restrictive immigration policy in view of the high population density and the problems to which this gives rises, such as in the field of housing and employment. Admission is only granted on the basis of treaty obligations such as the 1951 Geneva Convention relating to the status of refugees, if the individual’s presence serves an essential Dutch interest or if there are compelling reasons of a humanitarian nature.

An application for a residence permit is to be submitted to the Minister of Justice, who will issue one if the relevant conditions are met (Article 11 of the Aliens Act). A residence permit or a prolongation thereof may be refused for considerations relating to public interest (Article 11 § 5 of the Aliens Act).

Section A4/4.3.2.1 of the 1994 Aliens Act Implementation Guidelines stipulates that a request for admission is refused where the person concerned has been convicted of a criminal offence and has been sentenced to a non‑suspended term of imprisonment or custodial measure. This also applies where a conviction has not yet become final. In these circumstances there is no obligation for the authorities in their determination of a request for admission to strike a balance between the individual interests at stake and the nature of the criminal offence, unless the application of this policy rules would have consequences for the person concerned which, on grounds of special circumstances within the meaning of Article 4:84 of the General Administrative Law Act (Algemene Wet Bestuursrecht), would be disproportionate to the aim pursued by the policy rule .

Under Article 15 of the Aliens Act, aliens may be admitted as refugees if they come from a country where they have well-founded reasons to fear persecution on account of their religious, ideological or political convictions or their nationality, or their membership of a particular race or social group. The definition of “refugee” enacted in the Dutch legislation has been interpreted by the Dutch judiciary as referring to the same category of persons as the definition contained in the 1951 Geneva Convention on the status of refugees as amended by the Protocol of 31 January 1967.

An alien who is not or no longer eligible for admission to the Netherlands is obliged to leave the country (Article 15d § 2 of the Aliens Act). If the person concerned fails to do so, he may be expelled (Article 22 § 1 of the Aliens Act). Aliens who claim that, if expelled, they would be forced to go directly to a country where they would have well-founded reasons to fear persecution on account of their religious, ideological or political convictions or their nationality, or their membership of a particular race or social group cannot be expelled unless a special order to this effect has been issued by the Minister of Justice (Article 22 § 2 of the Aliens Act).

II.  The Dutch policy on asylum seekers from Chechnya

The Netherlands Government policy on asylum seekers is based, inter alia, on official reports (ambtsberichten) of the Ministry of Foreign Affairs on the situation in their countries of origin.

On 2 November 1995, such an official report was issued on the punishment of evasion of military service and desertion in the Russian Federation, also in relation to the conflict in Chechnya.

On 15 August 1996, an official report was issued on the residence system (see below) in the Russian Federation.

On 31 January 2000, an extensive official report on the situation in the Northern Caucasus was issued. This report contains information about the general situation in Chechnya, and about the situation of displaced persons in Chechnya, Ingushetia and Dagestan. According to this report, the Government of the Russian Federation stated in October 1999 that they no longer recognised Aslan Maskhadov and his government as the lawful rulers of Chechnya and that the Russian Government had rejected the offer by Aslan Maskhadov to start negotiations. As regards the situation of displaced persons, the report states that, according to the Russian authorities, no forced return of displaced persons to the “liberated” parts of Chechnya will take place.

The report further states that, although displaced persons from Chechnya residing elsewhere in the Russian Federation do not have to fear persecution from the side of the Russian authorities, they are often bothered by law enforcement agents and civil servants whereas, given their unclear legal status, it is difficult for them to have their rights respected. Chechen displaced persons, who reside illegally elsewhere in the Russian Federation, run the risk of being arrested, but are mostly released after some hours, sometimes outside the territory of the municipality concerned.

On the basis of this report, the Government informed the Lower House (Tweede Kamer) of Parliament by letter of 3 April 2000 that the departure of unsuccessful asylum seekers from Chechnya, who do not hold a permanent or temporary residence permit for another part of the Russian Federation, would be deferred. According to this letter:

“Since 23 September <1999> the Russian airforce carry out bombardments on and around Grozny and other places in the republic. In practice, also civilian targets have been hit. Troops of the Russian Federation have moved into the republic and have taken possession of the capital in January of this year. At present, a large part of Chechnya is in the hands of the Russian authorities. ...As a result of the offensive, hundreds of thousands of Chechen citizens have fled to neighbouring Russian republics and regions. ...

Displaced persons stay in the surrounding areas in camps or with host families. The Russian Federal authorities provide for the distribution of food. It is unknown how many displaced persons do in fact benefit from these distributions. Several Non-governmental Organisations report that the food situation is insufficient. International humanitarian aid is difficult to get going given the lack of guarantees for the security of foreign and local staff.

The international community ... urges the Russian Federal authorities continuously to provide for security guarantees for the provision of international aid. Although in the meantime the United Nations have concluded an agreement with the Russian Federal authorities to this end, in practice only a limited implementation thereof is put in effect.

In these circumstances, the Government does not consider it acceptable to hold, already at this point in time, that there is a protection alternative in the form of settlement in the surrounding areas against Chechen asylum seekers. Noting the unclear situation in Chechnya and awaiting an improvement in the situation for Chechen displaced persons within the Russian Federation, it has been decided to defer the departure of Chechen asylum seekers who do not hold an residence permit for other parts of the Russian Federation.”

This deferral of departure does, however, not apply in cases where there are so-called contra-indications, such as, inter alia, where the person concerned has breached public order or has criminal antecedents.

On 29 June 2000, a second extensive official report on the situation in the Northern Caucasus was issued, covering basically the same subject matters as the previous report of 31 January 2000. It mentions that the Russian President Vladimir Putin had stated various times to be prepared to start negotiations with the former Chechen President Aslan Maskhadov, provided that the latter would hand over the “terrorists” in particular the warlords Basajev and Al-Khattab. However, according to the Russian authorities, Aslan Maskhadov would no longer have any real powers in Chechnya and definitely not over the warlords Basajev and Al-Khattab.

As regards the situation of Chechen displaced persons in the Russian Federation, it is stated that, according to the sources consulted, no instances of involuntary return to Chechnya since the taking of Grozny by Russian forces in February 2000 were known. The report further states that most Chechen displaced persons remain in the region because the food supply had now attained a reasonable level as the provision of international humanitarian aid, mainly in the hands of international organisation, had been getting going and that attempts by Chechen displaced persons to settle elsewhere in the Russian Federation were only taking place on a limited scale given the likelihood of encountering problems in the field of registration and discrimination on the labour market. According to the report, there was no longer any possibility to gather detailed information about the possibilities for Chechen displaced persons to settle elsewhere in the Russian Federation after the dissolution of Federal Migration Service (see below) in May 2000.

III.  The Russian Federation

In 1932 the obligatory residence registration system (прописка; “propiska”) was formally instituted in the then Soviet Union by the creation of the obligation for all citizens of the Soviet Union to carry internal passports in which, inter alia, a person’s ethnicity was recorded. The internal passport further contained a residence permit for a specific area, thus controlling internal migration by restricting every citizen to one legal place of residence. Presentation of this residence permit was required for various formalities, like entering schools or universities, to marry, for employment related purposes, for payment of social security benefits and for access to social services and health care.

In order to move to a different area within the Soviet Union, a person was required to present him or herself to the local authorities of his or her place of residency and to request to be removed from the local residence register. Inclusion in the residence register of the new place of residence and the issuance of a new residence permit was made dependent on, inter alia, proof of adequate permanent housing and of having found employment.

In 1990 and 1991 the USSR Constitutional Supervisory Committee (Комитет Конституционного Надзора СССР) ruled that this system – to the extent that it constituted a residence permit mechanism – was unconstitutional in that it was contrary to the right of freedom of movement as guaranteed by the Soviet Constitution. It pronounced the residence permit system invalid in this respect as from 1 January 1992.

In 1995, 1996 and 1998, the new Constitutional Court of Russia (Конститутционный Суд России) which acts under the new 1993 Russian Constitution handed down a number of judgments pronouncing the unconstitutionality of sub-statutory acts which in fact maintained the residence permit nature of the propiska. It ruled that registration of residence should be of a mere notification nature, i.e. informing the authorities of a taking up of residence, who should then record this fact by way of a registration.

Nevertheless, it is alleged that in practice a shadow system remains in force in Russia, as various regional authorities in the Russian Federation have adopted rules having a similar effect as the mechanism declared unconstitutional and local officials still rely on old methods to limit freedom of movement in order to keep people who are perceived as undesirable out of their communities. Unlawful residents can on that ground be placed in detention and are eligible for deportation to their original place of residence, and applicants for a residence permit in a new area may be compelled to return to their former place of residence in order to obtain formal documents required for the issuance of a residence permit in their new place of residence. A new residence permit can be either of a permanent or temporary nature.

The Law on Forced Migrants (Закон о вынужденных переселенцах) of 1993, as amended in 1995, provides in Section 1 that a forced migrant is a citizen of the Russian Federation who has left his place of residence as a result of acts of violence or persecution or as a result of a real danger of being subjected to persecution on grounds of racial or ethnic origin, religion, language, belonging to a certain social group or political convictions, which have become a motive for conducting hostile campaigns against a individual person or a group of persons in the form of massive violations of public order directed against the person concerned or his family.

Pursuant to Section 2 of this Law, persons having committed a crime against humanity as defined by national legislation are excluded from the status of forced migrant.

A request to be granted the status of forced migrant must be filed with the Regional Migration Service Department (территориальный орган миграционной службы) which registers and determines the request. Pending the determination of such a request, the person concerned is provided with a certificate stating that a request for forced migrant status has been filed and registered. This certificate gives a right to a number of social benefits provided for by the State.

The Regional Migration Service Department has to determine a request within three months. If it is granted, a certificate of forced migrant is issued with a validity of five years. This certificate creates access to a number of rights such as settlement in the Russian Federation and social benefits from the State. The forced migrant status is withdrawn where the person concerned is convicted of a criminal offence.

By Presidential Decree of 17 May 2000 the Federal Migration Service (Федеральная Миграционная Служба) – the umbrella organisation responsible for dealing with internally displaced persons within the Russian Federation – has been dissolved and its tasks have been transferred to the Ministry of Federation Affairs, Migration and National Policy (Министерство по делам Федерации, национальной и миграционной политики).

COMPLAINTS

The applicant complains that, if expelled to Russia, he will run a real risk of being subjected to treatment contrary to Article 3 of the Convention. He submits that he will be prosecuted and persecuted by the Chechen authorities for desertion from the so-called “Chechen army” and prosecuted by the Russian authorities because he is an ethnic Chechen and has served in the “Chechen army”.

THE LAW

The applicant complains that, if expelled to Russia, he will run a real risk of being subjected to treatment contrary to Article 3 of the Convention, which provision reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submit in the first place that there is no question of the applicant being deported to Chechnya. The case concerns his expulsion to the Russian Federation. The Government are of the opinion that the applicant can avoid any problems with the Chechen authorities by settling elsewhere in the Russian Federation.

With reference to the official report of 31 January 2000, the Government submit as to the applicant’s claim of persecution on grounds of his ethnic origin that, although the general situation of Chechens in other parts of the Russian Federation than Chechnya is not ideal, it cannot be said that ethnic Chechens should fear treatment contrary to Article 3 of the Convention from the side of the Russian authorities on account of their origin.

The Government note that the applicant’s claim that he is wanted by the Russian authorities has remained fully unsubstantiated and that he only raised this claim once the State Secretary had rejected his asylum request finding that he could settle elsewhere in the Russian Federation. The Government further state not to be aware of the existence of a warrant for the applicant’s arrest issued by the Russian authorities and neither has there been a request for his extradition.

In respect of the applicant’s claim that he will be forced to return to Chechnya if he returns to the Russian Federation, the Government submit, relying on the official report of 29 June 2000, that the Russian authorities do not in fact force displaced persons to return to Chechnya. They will only enable displaced persons to return voluntarily. The Government are therefore of the opinion that they have no reason to assume that the Russian authorities will forcibly deport the applicant to Chechnya.

Referring to the principles established in the Court’s case-law under Article 3 of the Convention in cases concerning expulsion, the Government conclude that the applicant has failed to demonstrate that, if returned to the Russian Federation, he will fall victim to treatment prohibited by this provision.

The applicant submits that his asylum request was unjustly rejected in that he must be considered as a refugee under the Geneva Convention on the status of refugees. In holding that he could settle elsewhere in the Russian Federation, the Netherlands authorities completely ignore the fact that he is wanted by the Russian secret service which is located all over Russia. He submits that, given his personal history, it was imperative for him to leave the country.

As regards his criminal antecedents in the Netherlands, the applicant submits that he has taken full responsibility for his misdemeanours by complying with the sentences imposed and that he has not committed any further offences.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’BoyleElisabeth Palm
RegistrarPresident

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