SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application nos. 6276/03 and 6122/04
by Akbar TAHERI KANDOMABADI
against the Netherlands
The European Court of Human Rights (Second Section), sitting on 29 June 2004 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above applications lodged on 17 February 2003 and 17 February 2004 respectively,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court in application no. 6276/03,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant on the admissibility and merits of application no. 6276/03,
Having regard to the reply submitted by the respondent Government to a request for information pursuant to Rule 54 § 2 (a) of the Rules of Court in respect of application no. 6122/04 and the applicant’s written comments on that reply,
Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
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.
B. Relevant domestic law and practice
1. Asylum proceedings
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).
2. Netherlands policy on Iranian asylum seekers
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.
C. Relevant international material
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.”
COMPLAINTS
The applicant complained under Articles 2 and 3 of the Convention that he would be in danger of being killed and/or exposed to a real risk of being subjected to torture or inhuman treatment if he were expelled to Iran. Invoking the same provisions, he also complained that the failure of the Netherlands authorities to provide him with basic facilities such as food, water and accommodation pending the proceedings before the Court endangered his life and constituted inhuman and degrading treatment.
The applicant further complained under Articles 6 and 13 of the Convention that the new evidence submitted by him in support of his second request for asylum was ignored by the Netherlands authorities who applied Article 4:6 of the General Administrative Law Act in order to bypass any examination of the merits of his request.
THE LAW
A. Alleged violations of Articles 2 and 3 of the Convention
The applicant alleged violations of Articles 2 and 3 of the Convention as regards both his threatened expulsion to Iran and the withdrawal by the Netherlands authorities of basic sustenance and shelter pending the proceedings before the Court. These provisions, in so far as relevant, provide as follows:
Article 2
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The applicant’s expulsion to Iran
In the opinion of the Government, the applicant had not established that there were substantial grounds for believing that he would be executed or run the risk of inhuman treatment contrary to Articles 2 and 3 of the Convention, either on account of the alleged political activities of his father or because of his participation in a student demonstration. The Government noted that the applicant’s father had stated to immigration officials in the Netherlands that repeated desertions from the army meant that he had been passed over for promotion but not, as asserted by the applicant, that he had had problems on account of his political convictions or activities. In any event, the father’s asylum application had been dismissed; although he had been granted a residence permit, this was on the basis of procedural grounds and not for substantive reasons.
The Government further emphasised that it had not been established that the applicant had been or was still wanted by the Iranian authorities on account of his participation in the student demonstration. In this context they noted that he had spent the period between July and October 1999 in Teheran without any problems and worked at the market there. The applicant had also never been arrested or detained or held against his will. Except for the one occasion on which he claimed to have been beaten during a student demonstration, he had never been assaulted. In addition, it emerged from the country reports drawn up by the Netherlands Ministry of Foreign Affairs, that criminal proceedings had been waived in respect of a large number of participants in the student demonstrations and that only six students remained in prison. According to the Government, this would not appear to indicate that the Iranian authorities currently viewed the applicant with suspicion. The applicant’s arguments to the contrary were solely based on assumptions and circumstantial statements.
The documents submitted by the applicant did not detract from the above. The summonses (A), (B) and (C) did not reveal the grounds on which the applicant was summoned. The documents (D) to (G) were internal documents of the Iranian Government, and the way in which they had allegedly been obtained by the applicant gave rise to serious doubts as to the value to be attached to them. Moreover, investigations carried out by the Royal Military Constabulary (Koninklijke Marechaussee) on 4 August 2002 into documents (E) and (F) had shown that the authenticity of those documents could not be established. Finally, observing that documents (C) and (D) bore dates on which the applicant was still in Iran and that documents (E) to (G) were undated, the Government considered that the applicant had failed to establish that he could not have submitted these documents during the proceedings on his first request for asylum.
The applicant maintained that, as a result of his participation in the student demonstrations, his life was at risk in Iran and he also had a well-founded fear of being subjected to treatment contrary to Article 3 of the Convention. He had obtained statements from two witnesses in Iran, testifying to the fact that he had indeed taken part in those demonstrations. It was abundantly clear from the documents (A) to (G) that he was wanted by the Iranian authorities; moreover, document (D) confirmed that he was being prosecuted on account of his role in the demonstrations.
In the opinion of the applicant, it should not be forgotten that, since the departure of his father, his family and he himself had been receiving particular attention from the Iranian authorities. Combined with the systematic way in which human rights are violated in Iran, and the current situation of renewed unrest there, the applicant had no doubts that upon his return to that country he would be arrested and subjected to ill-treatment or worse.
The Court observes that the applicant’s submissions contain few arguments relating solely to Article 2 of the Convention. It considers this complaint to be indissociable from the substance of the applicant’s complaint under Article 3 in respect of the consequences of the impugned decision for his life, health and welfare. It is therefore more appropriate to deal globally with this allegation when examining the related complaint under Article 3.
According to the Court’s constant case-law, the expulsion of an alien may give rise to an issue under this provision, and hence engage the responsibility of the expelling State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country (see, for example, Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII). A mere possibility of ill-treatment is not in itself sufficient.
In determining whether it has been shown that the applicant runs a real risk, if deported to Iran, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu. Furthermore, given that the applicant has not yet been expelled, the risk is assessed as at the date of the Court’s consideration of the case. Even though the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary also to have regard to developments which have occurred after the final decision taken by the domestic authorities (see Chahal v. the United Kingdom, judgment of 15 November 1996, pp. 1856 and 1859, §§ 86 and 97, Reports of Judgments and Decisions 1996-V).
The Court has also previously held that, having regard to the fact that Article 3 enshrines one of the most fundamental values of a democratic society and prohibits in absolute terms torture or inhuman or degrading treatment or punishment, a rigorous scrutiny must necessarily be conducted of an individual’s claim that his or her deportation to a third country will expose that individual to treatment prohibited by Article 3 (see Jabari, cited above, § 39). Moreover, it is to be borne in mind that in applications for asylum it may be difficult, if not impossible, for the person concerned to supply evidence within a short time, especially if – as in the present case – such evidence must be obtained from the country from which he or she claims to have fled. Accordingly, procedural rules should not be so strict, or applied so inflexibly, as to deny an applicant for refugee status a realistic opportunity to prove his or her claim (see Bahaddar v. the Netherlands, judgment of 19 February 1998, Reports 1998-I, p. 263, § 45).
Turning to the circumstances of the present case, the Court notes that it is the applicant’s submission that he is at risk of treatment in breach of Article 3 in Iran on account of his participation in the student demonstrations of July 1999. He argues that his claim did not receive a meaningful assessment by the authorities of the respondent State, given their refusal to have regard to documents which purportedly constitute evidence of the fact that he is wanted by the Iranian authorities. However, the Court is of the opinion that in the present case it is not necessary to express itself on the question whether the processing of the applicant’s requests for asylum was at variance with the protection of the fundamental value embodied in Article 3 of the Convention, since – even assuming that the Iranian authorities did indeed summon the applicant in the months after, and in connection with, the demonstrations – it considers that his complaint is in any event inadmissible for the following reasons.
First and foremost, the Court is not persuaded that as a result of his participation in the student demonstrations of July 1999 the applicant is currently still viewed with suspicion by the authorities in Iran. It appears from the country reports compiled by the Netherlands Ministry of Foreign Affairs – and this has not been disputed by the applicant – that in February 2000 an amnesty was announced for 10,000 people who had been involved in the demonstrations. The “instigators” of the unrest were acquitted on appeal in July of that year and, by February 2003, only six of the students imprisoned for their role in the riots were still in prison – primarily members and sympathisers of a student union viewed with suspicion by the regime. In this context, the Court also bears in mind that the applicant’s role in the demonstrations was not that of a leader or organiser; that he was neither a student nor a member of a student union; and that he had not previously been politically active. While it is undeniably the case that the human rights situation in Iran continues to give serious cause for concern, information recently compiled by other bodies or organisations, such as the United States State Department and Amnesty International, contain no indication to the effect that participants in the 1999 demonstrations who have not previously been prosecuted are at risk at the present time.
Secondly, the Court cannot find that the above is altered by the fact that the applicant and his family had been under close attention from the authorities following the departure of his father. The Court observes that, according to the applicant, the Iranian authorities put pressure on the family members in order to get his father to report to them. Therefore, it cannot be said that the authorities had a particular interest in the applicant personally. Nor has it been submitted that the pressure exerted by the authorities ever involved treatment of the type proscribed by Article 3.
Having regard to the particular circumstances of the case, the Court therefore finds that no substantial grounds have been established for believing that the applicant, if expelled, would be exposed to a real risk of being subjected to torture or inhuman or degrading treatment or punishment within the meaning of Article 3 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The refusal to provide the applicant with basic facilities
In reply to a request for information pursuant to Rule 54 § 2 (a) of the Rules of Court concerning the availability of provisions for the applicant’s subsistence, the Government submitted that the applicant had failed to exhaust domestic remedies. They noted that the applicant had not requested the competent authorities to grant him reception facilities on the basis of extremely compelling humanitarian circumstances; nor had he challenged a refusal of such facilities before the courts. In any event, the applicant had in no way demonstrated or provided substantive evidence that the denial of reception facilities created a risk of violations of Articles 2 and 3 of the Convention.
The applicant argued that, in practice, extremely compelling humanitarian circumstances were only considered to exist where individuals were seriously ill and needed daily treatment, or when a birth was due within several weeks. As he was not ill, he would thus not be granted reception facilities. Nevertheless, given that the Government, in their reply to the question put by the Court, had indicated that he might be eligible for such facilities, he had submitted a request to that effect to the COA on 19 April 2004 which had, so far, remained unanswered. The applicant further maintained that the effect of the interim measure, issued pursuant to Rule 39 of the Rules of Court, was slowly being diminished by the application of Netherlands laws and regulations, which were now threatening his health and well-being, possibly leading to another and direct breach of Articles 2 and 3 of the Convention.
The Court notes that there is currently a request to provide the applicant with basic facilities pending before the competent authorities in the Netherlands. The Court further observes that an appeal lies, not only against a decision not to provide facilities, but also against a failure to decide, or to decide within a reasonable time, on a request for reception facilities, and that a provisional measure may be sought in order for facilities to be made available pending the appeal proceedings. Indeed, it appears that the applicant has recently instituted such proceedings.
Although it is the applicant’s submission that his request for facilities is bound to fail, it appears from recent case-law that the stay in the Netherlands of a person, in respect of whom an interim measure pursuant to Rule 39 has been issued, has been held to be lawful. That person is, therefore, considered eligible for reception facilities. In these circumstances, it cannot on the face of it be said that the proceedings, which are currently still pending, are ineffective.
In view of the above, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Alleged violations of Articles 6 and 13 of the Convention
The applicant also complained that by disregarding the new evidence which he had adduced in support of his second request for asylum, the Netherlands authorities had provided him with neither a fair trial nor an effective remedy. He invoked Articles 6 and 13 of the Convention which, in so far as relevant, provide as follows:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government argued, firstly, that Article 6 did not apply to the proceedings at issue. Secondly, and with regard to the complaint under Article 13, they were of the opinion that the applicant had had an effective domestic remedy at his disposal. The applicant had had ample opportunity to elucidate both his first and second request for asylum. As regards the second request, he had also been able to appeal the decision refusing that request to the Regional Court of The Hague, as well as subsequently to the Administrative Jurisdiction Division of the Council of State. This latter tribunal had held that the applicant had not established any exceptional facts or circumstances providing grounds for assessing the new request outside the framework of Article 4:6 of the General Administrative Law Act.
The applicant insisted that the asylum proceedings concerned the determination of civil rights and that, therefore, Article 6 was applicable. In this context he argued that the outcome of those proceedings did not only have a critical bearing on issues of life and death, but that under Netherlands law a rejection of an asylum application also had a decisive effect on other matters, such as the right to reception facilities.
The applicant further maintained that his second request for asylum had not been assessed in the light of a possible breach of Articles 2 and 3 of the Convention. It had proved impossible for him to obtain the documents, which he submitted in support of his second request, at an earlier stage. Once he received them, he had sought a review of the decision on his original request, but had been told to lodge a new asylum application. The only issue that had subsequently been examined in the proceedings on his new request, was whether he could and/or should have submitted the documents earlier.
The Court has previously held that Article 6 of the Convention does not apply to proceedings concerning the entry, stay and deportation of aliens, even if the impugned decision incidentally also has major repercussions on a person’s private and family life or on his prospects of employment (see Maaouia v. France [GC], no. 39652/98, §§ 38 and 40, ECHR 2000-X). Following this precedent in the present case, the Court considers that Article 6 is inapplicable.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
As regards the complaint under Article 13 of the Convention, the Court reiterates its constant case-law according to which this provision applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, amongst many authorities, A. v. the United Kingdom, no. 35373/97, § 110, ECHR 2002-X). The Court has found above that the applicant’s complaints under Articles 2 and 3 about the rejection of his request for asylum are manifestly ill-founded. It follows that the applicant does not have an “arguable claim” and these complaints do not attract the guarantees of Article 13.
This part of the application must therefore also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy