EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 25894/94

                         Shammsuddin Bahaddar

                                against

                            the Netherlands

                       REPORT OF THE COMMISSION

                    (adopted on 13 September 1996)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-14). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 20-69). . . . . . . . . . . . . . . . . . . . . . . . 4

      A.   The particular circumstances of the case

           (paras. 20-45) . . . . . . . . . . . . . . . . . . . . . 4

      B.   The evidence before the Commission

           (paras. 46-51) . . . . . . . . . . . . . . . . . . . . . 8

      C.   The Bangladeshi background to the present case

           (paras. 52-63) . . . . . . . . . . . . . . . . . . . . . 9

      D.   The Government's reply to the question put by

           the Commission (paras. 64-65). . . . . . . . . . . . . .11

      E.   Relevant domestic law and practice

           (paras. 66-69) . . . . . . . . . . . . . . . . . . . . .11

III.  OPINION OF THE COMMISSION

      (paras. 70-104) . . . . . . . . . . . . . . . . . . . . . . .12

      A.   Complaints declared admissible

           (para. 70) . . . . . . . . . . . . . . . . . . . . . . .12

      B.   Points at issue

           (para. 71) . . . . . . . . . . . . . . . . . . . . . . .12

      C.   As regards Article 2 of the Convention

           (paras. 72-80) . . . . . . . . . . . . . . . . . . . . .12

           CONCLUSION

           (para. 81) . . . . . . . . . . . . . . . . . . . . . . .13

      D.   As regards Article 3 of the Convention

           (paras. 82-101). . . . . . . . . . . . . . . . . . . . .13

           CONCLUSION

           (para. 102). . . . . . . . . . . . . . . . . . . . . . .17

      E.   Recapitulation

           (paras. 103-104) . . . . . . . . . . . . . . . . . . . .18

DISSENTING OPINION OF MRS. J. LIDDY, MM. E. BUSUTTIL,

J.-C. SOYER, K. HERNDL AND E.A. ALKEMA. . . . . . . . . . . . . . .19

APPENDIX:  DECISION OF THE COMMISSION AS TO THE

           ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .21

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is a Bangladeshi citizen, born in 1966, and

residing in the Netherlands.  He was represented before the Commission

by Mrs. R. Niemer, a lawyer practising in Amsterdam.

3.    The application is directed against the Netherlands.  The

respondent Government were represented by their agent, Mr. H. von

Hebel, of the Netherlands Ministry of Foreign Affairs.

4.    The case concerns the applicant's complaint that his expulsion

to Bangladesh would expose him to a serious risk of being arrested,

tortured or killed. The applicant invokes Articles 2 and 3 of the

Convention.

B.    The proceedings

5.    The application was introduced on 2 December 1994 and registered

on 9 December 1994.

6.    On 9 December 1994 the Commission decided, in accordance with

Rule 36 of the Commission's Rules of Procedure, to indicate to the

Government of the Netherlands that it was desirable in the interest of

the parties and the proper conduct of the proceedings not to expel the

applicant to Bangladesh until the Commission had an opportunity to

examine the application in the light of the parties' submissions. On

19 January, 2 March, 22 May, 6 July, 14 September, 26 October,

7 December 1995, 7 March, 18 April and 4 July 1996 the Commission

decided to prolong the application of Rule 36.

7.    Also on 9 December 1994 the Commission decided, pursuant to Rule

48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

8.    The Government's observations were submitted on 17 February 1995.

The applicant replied on 7 and 10 April 1995.

9.    On 22 May 1995 the Commission declared the application

admissible.

10.   The text of the Commission's decision on admissibility was sent

to the parties on 2 June 1995 and they were invited to submit such

further information or observations on the merits as they wished.  The

Government submitted further observations on 4 July 1995. The applicant

did not avail himself of the opportunity to submit further

observations.

11.   On 7 December 1995 the Commission decided to put a question to

the Government and to transmit their reply to the applicant's

representative for comments.

12.   The Government submitted their reply to the question on

7 February 1996 after an extension of the time-limit fixed for that

purpose.

13.   The applicant did not submit any comments on the answer provided

by the Government.

14.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.    The present Report

15.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

16.   The text of this Report was adopted on 13 September 1996  by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

17.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

      (i)  to establish the facts, and

      (ii) to state an opinion as to whether the facts found disclose

           a breach by the State concerned of its obligations under

           the Convention.

18.   The Commission's decision on the admissibility of the application

is annexed hereto as an Appendix.

19.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

20.   The applicant applied for asylum or, alternatively, a residence

permit for humanitarian reasons in the Netherlands on 13 July 1990. He

was interviewed by an official of the Ministry of Justice (Ministerie

van Justitie) on 22 May 1991 and submitted that he was a Buddhist and

belonged to the Chakma tribe in the Chittagong Hill Tracts region of

Bangladesh. His parents had been killed by the army when he was eight

years old and he had then been adopted by a Muslim family. From 1974

he had been a member of the illegal organisation "Shanti Bahini". He

had only been eight years old at that time, but children were taught

at an early age to be on the alert for army presence in the area. His

activities for Shanti Bahini had consisted of the gathering of

information concerning movements of Government forces and the mapping

of army routes. He had been able to indulge in these activities

undetected since it was generally unknown that his foster parents were

not his real parents and he was therefore considered a Muslim. In 1987

he had also joined the legal Bangladeshi National Party (BNP).

21.   On 16 April 1990 the applicant had taken part in a BNP

demonstration against sub-district elections which were to be held from

10 to 26 April 1996. In these elections, businessmen who had settled

in the region were allowed to stand as candidates whereas for native

inhabitants this was not automatically the case. The election of non-

native inhabitants would frustrate the desired autonomy of the region.

Following the dispersal of the demonstration by police, the applicant

had gone to a friend's house from where he had telephoned his foster

father. His foster father had informed him that the police, acting upon

a complaint that the applicant had damaged goods and wounded people in

the course of the demonstration, had searched the house. In the course

of this search the police had come upon papers drawn up by the

applicant for Shanti Bahini which contained information about movements

of Government forces.

22.   The applicant had prepared to leave his country when he learned,

after a few days, that a warrant for his arrest had been issued in

connection with his activities for an illegal organisation. Until his

departure he stayed with a friend and with relatives of his foster

father. On 30 June 1990 he crossed the border with India on foot and

then travelled to Bombay from where he boarded a flight to the

Netherlands, using a false passport.

23.   His requests for asylum or a residence permit for humanitarian

reasons were refused on 16 July 1991 by the State Secretary for Justice

(Staatssecretaris voor Justitie). The applicant requested the State

Secretary to review (herziening) this decision. He submitted, inter

alia, that he had joined the BNP to cover up his activities for Shanti

Bahini. He further clarified that his foster parents were not aware of

his involvement with Shanti Bahini.

24.   The State Secretary denied suspensive effect to the applicant's

request for a review of his decision. In order to obtain an injunction

on his expulsion pending the review proceedings, the applicant

instigated interim injunction proceedings (kort geding) before the

President of the Regional Court (Arrondissementsrechtbank) of The Hague

sitting at 's-Hertogenbosch (nevenzittingsplaats 's-Hertogenbosch).

25.   On 14 November 1991 the President granted the injunction

requested. The President found the applicant's story consistent and

credible and considered that an investigation was called for into the

authenticity of untranslated documents submitted by the applicant which

might support his allegations. Although it had appeared that the sub-

district elections had taken place from 12 to 25 March 1990 and not

from 10 to 26 April 1990 as submitted by the applicant in his interview

with the official of the Ministry of Justice, the President held that

this interview had taken place more than a year later and that

therefore the conclusion that the applicant's account of events was

untrue was unjustified. The President also had regard to a letter from

Amnesty International of 24 October 1991, which stated that, if it was

true that the applicant had provided Shanti Bahini with information

about military operations and the military were aware of this, he

risked detention and torture upon his return to Bangladesh.

26.   The applicant was heard by the Advisory Committee on Alien

Affairs (Adviescommissie voor Vreemdelingenzaken) on 21 December 1992.

Asked about his activities for Shanti Bahini the applicant said that

he had been aware of the existence of the organisation from an early

age. From 1974 he had been involved with them albeit marginally. From

1986 he had started to supply this organisation with information about

movements of the Government forces. He would obtain this information

by looking at the destination indicated on boats transporting rations

for the military. Shanti Bahini would be informed of the destination

of the boats and clashes ensued when the military came to collect the

rations. He would furthermore draw sketches on which he indicated

distances between the town of Rangamati and army camps. These sketches

would later be made into detailed maps by Shanti Bahini.

27.   The applicant also told the Advisory Committee that in the years

1982/1984 he had begun to collect funds for Shanti Bahini from the

local population. The Bengali settlers in particular did not want to

contribute to an illegal organisation but the applicant would tell them

that they had moved into an area which did not belong to them and that

therefore they had to pay a sort of tax. In 1990, after the police had

started looking for the applicant, a Bengali fisherman, Mr. Omar K.,

had filed a complaint against him, in which he was accused of

extortion. The applicant said that from 1984 he used to go to Omar K.

to collect the taxes with three other people. However, the applicant

denied that he had ever exerted pressure on Omar K.

28.   Asked about the demonstration in April 1990 the applicant said

that since Shanti Bahini were an illegal organisation and therefore

unable to demonstrate publicly the name of the BNP had been used. Some

members of the BNP had been present at the demonstration but the

majority of participants had consisted of Shanti Bahini members.

29.   After the demonstration had ended in clashes with police, the

latter had made enquiries into who had been present at the

demonstration. To this end they had interviewed a Ward Commissioner,

Mr. Mujibfor A., who lived in the same street as the applicant and who

had recognised him at the demonstration. The applicant, who had gone

to a friend's house after the demonstration, had telephoned his foster

parents and had found out that the police, accompanied by Mr. A., had

gone to the house and had found the sketches he had drawn up for Shanti

Bahini in a locked drawer which had been forced open by the police. His

foster father had been taken to the police station where he had been

questioned about the applicant and the applicant's background. With the

assistance of a lawyer, the applicant's foster father had obtained his

release on bail.

30.   When the applicant had learned that the police wanted to question

him about his activities for Shanti Bahini, the leader of this

organisation had said that he would be ill-treated at the police

station until he had told them all about his activities for Shanti

Bahini, endangering not only himself but also other members of the

organisation. For this reason it had been decided that the applicant

should leave the country. Shanti Bahini had initially wanted the

applicant to go to India where he would be trained in the use of fire

arms. However, the applicant had refused to go there, since he knew

some other men who had died in Bangladesh after they had returned from

such a training in India.

31.   The applicant finally told the Advisory Committee that if he was

expelled to Bangladesh he would be arrested and ill-treated by police.

It would be possible to prove his involvement with Shanti Bahini

through the complaint of extortion which had been filed against him.

32.   On 21 December 1992 the Advisory Committee expressed as its

opinion that the applicant was not a refugee within the meaning of the

Geneva Convention and that he was not eligible to receive a residence

permit for humanitarian reasons. The Advisory Committee held that on

essential points the applicant's account was vague and contradictory.

Thus it had not become established that the applicant was a member of

Shanti Bahini. In this respect the Advisory Committee referred to an

investigation carried out by the Netherlands Ministry of Foreign

Affairs from which it appeared that the declaration submitted by the

applicant and purportedly issued by Shanti Bahini was not authentic.

The Advisory Committee further found that it had not become clear in

what way the applicant had been able to obtain information of value to

Shanti Bahini concerning the movement of army troops.

33.   The Advisory Committee further took into account that the sub-

district elections which had allegedly been the cause of the

demonstration of 16 April 1990 had at that time already taken place.

Finally, from the investigation carried out by the Netherlands Ministry

of Foreign Affairs it had further appeared that the applicant was only

wanted by the Bangladeshi authorities in connection with a complaint

filed against him by a private person and concerning the civil offence

of extortion for which, under Bangladeshi law, the applicant could

obtain his release on bail and which carried a maximum sentence of

three years' imprisonment.

34.   Adopting the Advisory Committee's proposal and reasoning, the

State Secretary for Justice rejected the request for a review on

26 March 1993.

35.   On 31 March 1993 the applicant filed an appeal against the State

Secretary's decision of 26 March 1993 with the Judicial Division of the

Council of State (Afdeling Rechtspraak van de Raad van State), adding

that the grounds for the appeal would be submitted as soon as possible.

As this appeal was denied suspensive effect, the applicant instigated

interim injunction proceedings before the President of the Regional

Court of The Hague sitting at Amsterdam.

36.   In these interim injunction proceedings the applicant argued,

inter alia, that the declaration of Shanti Bahini, submitted by him in

support of his request for asylum, was authentic but had been issued

by a regional branch of this organisation, which may not have been

known to the Netherlands Ministry of Foreign Affairs when it examined

the authenticity of the document.

37.   Following a hearing on 22 October 1993 the President, on

11 November 1993, granted the applicant an injunction on his expulsion

pending the proceedings before the Judicial Division. The President in

his decision had regard, inter alia, to a second declaration issued by

Shanti Bahini and a certified copy of a complaint filed with the Court

of the Upazila Magistrate against the applicant in which he is accused

of having collected funds for Shanti Bahini through extortion of the

person making the complaint and of taking part in the struggle of

Shanti Bahini against the State of Bangladesh. The President considered

that, even though the complaint against the applicant was filed by a

private person, given that the authenticity of these documents had not

been disputed it must be assumed that the interest of the Bangladeshi

authorities in the applicant has been aroused. Taking into account

further the letter of Amnesty International of 24 October 1991, the

President concluded that in all reasonableness the possibility that the

applicant had a well-founded fear of persecution could not be excluded.

38.   In the meantime, the applicant's lawyer was informed by the

Judicial Division on 28 June 1993 that she had not so far submitted the

grounds for the appeal with the Judicial Division and she was given the

opportunity to comply with this requirement before 29 July 1993. The

applicant's lawyer submitted grounds for the appeal on 20 October 1993,

without providing an explanation for the delay.

39.   On 7 March 1994 the President of the Administrative Law Division

(Afdeling Bestuursrechtspraak, the successor of the Judicial Division)

in simplified proceedings (vereenvoudigde procedure) declared the

applicant's appeal inadmissible for not having complied with a formal

requirement. The applicant filed an objection (verzet) against this

decision with the Administrative Law Division on 11 March 1994.

40.   In the hearing on the applicant's objection, which took place on

22 September 1994, the applicant argued that it had not been possible

to submit grounds for the appeal before 20 October 1993 since it had

been necessary, given that the State Secretary for Justice had disputed

the authenticity of documents submitted by him, to try and obtain

further proof of his allegations from Bangladesh and that this had

taken a long time.

41.   The Administrative Law Division rejected the applicant's

objection on 29 September 1994, holding that he had been given ample

opportunity to submit grounds for his appeal, that he had been informed

of the possible consequences in case of non-compliance with the

requirement that appeals should be motivated and that he had not

requested an extension of the time-limit for the submission of the

grounds.

42.   Neither the Administrative Law Division nor its President in his

decision of 7 March 1994 examined the merits of the applicant's appeal.

43.   On 5 December 1994 the applicant filed new requests for asylum

and a residence permit, arguing that the second declaration issued by

Shanti Bahini and the certified copy of the complaint filed against

him, as well as information provided by his lawyer in Bangladesh,

constituted new facts which the State Secretary for Justice had not

been able to take into account when deciding on the applicant's first

requests for asylum and a residence permit.

44.   The State Secretary for Justice declared the applicant's new

requests inadmissible on 12 January 1995 in accordance with Section 15b

para. 1 (b) of the Dutch Aliens Act (Vreemdelingenwet), as he was of

the opinion that no relevant new facts had been presented.

45.   Appeal proceedings against the decision of 12 January 1995 are

currently still pending but have no suspensive effect.

B.    The evidence before the Commission

46.   The Commission had regard to the following documents, which had

already been produced in the domestic proceedings.

      i. Letter of 5 November 1991 from the applicant's lawyer in

      Bangladesh, Mr. J.B. Chakma, to the applicant's lawyer in the

      Netherlands

47.   Mr. Chakma writes that the applicant's foster father came to see

him recently, saying that the police had come to him and had shown him

a warrant for his son's arrest. Mr. Chakma made enquiries and found out

that there is a case with number C.R. 30/91 pending against the

applicant in the Sub-District Court of Rangamati under Section 384 of

the Bangladesh Penal Code for which the applicant may be sentenced to

three years' imprisonment for extortion. Mr. Chakma further writes that

there is also an allegation of the applicant's involvement in the

insurgent activities of the Shanti Bahini. If this allegation is found

to be well-founded, the applicant may be imprisoned for life under

Section 121 of the Bangladesh Penal Code for waging war against the

State of Bangladesh.

48.   Mr. Chakma does not rule out that there are other cases pending

against the applicant but explains that pursuant to Section 332 of the

Bengal Records Manual an accused or his lawyer is not entitled to

receive copies of a first information report, an arrest warrant or a

judgment until the accused appears before a court.

      ii. Certified copy of undated petition of complaint with number

      C.R. 30/91 filed by Mr. Omar K. with the Court of the Upazila

      Magistrate

49.   Omar K. states that he is a fish merchant and that he was

compelled to pay illegal taxes to Shanti Bahini to ensure the safety

and security of the fishermen working for him and of his boats. The

applicant used to collect these taxes. Omar K. did not report this

matter to the law enforcing authorities for a long time as he feared

for his life. Ultimately, however, the applicant's involvement with

Shanti Bahini was detected by the law enforcing authorities and they

started looking for the applicant in order to arrest him. It has

further come to Omar K.'s knowledge that the applicant is living in the

Netherlands.

50.   For these reasons Omar K. lodged his complaint against the

applicant for extortion, illegal collection of money and for

participation in illegal war against the state under Sections 384 and

121 of the Bangladesh Penal Code.

      iii. Letter dated 24 October 1991 from Amnesty International in

      the Netherlands to the applicant's lawyer in the Netherlands

51.   Apart from general information in respect of the situation in the

Chittagong Hill Tracts (see paras. 54-55), the letter states that the

applicant risks being arrested and tortured upon his return to

Bangladesh if it is indeed the case that he provided Shanti Bahini with

information concerning military operations and the military are aware

of this.

C.    The Bangladeshi background to the present case

52.   In their submissions the parties have provided the Commission

with some information regarding the Bangladeshi background to the

present case. The Commission has further taken note of publications of

the United States Department of State and Amnesty International.

53.   The Commission had particular regard to the following documents:

      i. Letter dated 24 October 1991 from Amnesty International in the

      Netherlands to the applicant's lawyer in the Netherlands

54.   The letter states that the Chittagong Hill Tracts is the most

sparsely populated area of Bangladesh and that it was originally

inhabited by mainly Buddhist tribal groups of which the Chakma is the

largest. Subsequent Bangladeshi Governments have encouraged large

numbers of Bengali, who are mainly Muslim, to settle in the area,

causing the original population to fear a loss of identity. Bangladeshi

Governments have also tried forcefully to relocate the tribal

population to so-called "protected villages" near bases of the security

forces, since this was deemed to be in the interest of the social and

economic development of the area but this practice formed part of the

Government's policy against armed resistance at the same time.

55.   Shanti Bahini, which means "Peace Troops", is the armed wing of

the Jana Sanghati Samiti (JSS, People's Solidarity Association). It was

founded in 1972 at the same time as the JSS following the rejection of

tribal leaders' demands for autonomy by the then Prime Minister. Shanti

Bahini strives for regional autonomy of the Chittagong Hill Tracts and

uses violent methods to achieve its aim. Its members come from

different tribal groups but the Chakmas constitute the majority.

      ii. "Country Reports on Human Rights Practices for 1993", United

      States Department of State, February 1994

56.   The chapter on Bangladesh reports that the Government of

Bangladesh claims to hold no political prisoners. However, some arrests

under the Special Powers Act were for essentially political reasons,

including those of tribals arrested for allegedly aiding and abetting

the insurgent group Shanti Bahini (page 1322).

      iii. "Country Reports on Human Rights Practices for 1994", United

      States Department of State, February 1995

57.   The chapter on Bangladesh reports, inter alia, that in December

1994 the Bangladeshi Government extended an amnesty for Shanti Bahini

insurgents until 31 March 1995 (page 1208).

      iv. Amnesty International Report 1996, which covers the period

      January - December 1995

58.   The chapter on Bangladesh reports, inter alia, that the talks

between the Government of Bangladesh and the tribal representatives in

the Chittagong Hill Tracts failed to bring a political solution to the

long-standing conflict between non-Bengali tribal inhabitants and the

Government of Bangladesh. However, a cease-fire was periodically

extended. The repatriation of some 50,000 tribal refugees living in

camps in India was not restarted. The Government of Bangladesh rejected

demands by the tribal population that their repatriation should be

placed under international supervision (page 89).

59.   It is furthermore stated that there were continuing reports from

the Chittagong Hill Tracts of ill-treatment, harassment and arbitrary

detention of tribal people with the acquiescence or active

participation of the police (page 89).

60.   Finally, as regards the general situation in Bangladesh, the

report states that torture and ill-treatment in police custody and in

jails were widespread (page 89).

      v. "Country Reports on Human Rights Practices for 1995", United

      States Department of State, April 1996

61.   The chapter on Bangladesh reports that the army and paramilitary

forces are responsible for security in the Chittagong Hill Tracts,

where a tribal force has waged a low-level insurgency for twenty years.

In 1995 the Bangladeshi Government continued talks with Shanti Bahini's

political wing, the JSS, and the two sides agreed at short, regular

intervals to extend their cease-fire, which generally held throughout

the year, although each side accused the other of extensive violations.

The latest extension of the cease-fire included in the Report was set

to last until 31 March 1995 when talks between the two groups were

scheduled to resume. The Government of Bangladesh also extended the

amnesty for insurgents as long as the dialogue with Shanti Bahini

continued (pages 1294, 1296).

62.   All sides - indigenous tribes, settlers and security forces -

have accused each other of human rights violations. According to the

Report, it is difficult to verify facts in specific incidents because

Bangladeshi Government travel restrictions, tight security, difficult

terrain, and unsafe conditions created by the insurgency limit access

to the area (page 1296).

63.   As regards the general situation in Bangladesh the Report states

that the Government of Bangladesh continue to restrict or deny many

fundamental rights (page 1294). Although the Constitution prohibits

torture and cruel, inhuman or degrading punishment, police routinely

employ psychological and physical torture and other abuse during

arrests and interrogations. The Government of Bangladesh rarely convict

and punish those responsible for torture, and a climate of impunity

allows such police abuses to continue (page 1295).

D.    The Government's reply to the question put by the Commission

64.   On 7 December 1995 the Commission decided to put the following

question to the Government:

      "Is it correct that an amnesty for Shanti Bahini insurgents is

      at present in force in Bangladesh, and, if so, what are the

      implications of this amnesty in relation to the application?"

65.   In their reply of 7 February 1996 the Government submitted that

the Government of Bangladesh promulgated an amnesty in February 1994

with respect to all refugees returning from Tripura (India) and that

this amnesty was still in force. However, it could not be automatically

assumed that all members of Shanti Bahini may profit from this amnesty,

given the fact that the Government of Bangladesh refer only to clemency

for those Shanti Bahini members who were convicted during the previous

regime.

E.    Relevant domestic law and practice

66.   Pursuant to Section 15 of the Aliens Act (Vreemdelingenwet),

foreigners originating from a country where they have a well-founded

reason to fear persecution on account of their religious or politicial

conviction or their belonging to a certain race or a certain social

group may request the Minister of Justice (Minister van Justitie) to

grant them admittance to the Netherlands as a refugee (vluchteling).

67.   The definition of "refugee" enacted in the Dutch legislation has

been interpreted by the judiciary as referring to the same category of

persons as the definition contained in the Geneva Convention on the

Status of Refugees (cf. Judicial Division Council of State, decision

of 16 October 1980, Rechtspraak Vreemdelingenrecht 1981, 1).

68.   A request for admittance as a refugee will be rejected as being

inadmissible if the alien has previously requested admittance on the

same grounds and the decision rejecting this earlier request has become

final (Section 15b para. 1 sub (b) Aliens Act).

69.   A residence permit may be refused on grounds of public interest

(Section 11 para. 5 Aliens Act). In general, an application for a

residence permit in the Netherlands is granted only if the individual's

presence serves an essential national interest or if there are

compelling reasons of a humanitarian nature (klemmende redenen van

humanitaire aard).

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

70.   The Commission has declared admissible the applicant's complaints

that his expulsion to Bangladesh would expose him to a real risk of

death, torture or inhuman or degrading treatment.

B.    Points at issue

71.   The points at issue in the present case are as follows:

-     whether the expulsion of the applicant to Bangladesh would be in

      violation of Article 2 (Art. 2) of the Convention;

-     whether the expulsion of the applicant to Bangladesh would be in

      violation of Article 3 (Art. 3) of the Convention.

C.    As regards Article 2 (Art. 2) of the Convention

72.   Article 2 (Art. 2) of the Convention provides as follows:

      "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.

      2.   Deprivation of life shall not be regarded as inflicted in

      contravention of this Article when it results from the use of

      force which is no more than absolutely necessary:

      a.   in defence of any person from unlawful violence;

      b.   in order to effect a lawful arrest or to prevent the escape

      of a person lawfully detained;

      c.   in action lawfully taken for the purpose of quelling a riot

      or insurrection."

73.   The applicant submits that, if he is expelled to Bangladesh, he

is in danger of being killed on account of his activities for Shanti

Bahini.

74.   The Commission recalls the case-law of the Convention organs

according to which the right of an alien to reside in a particular

country is not as such guaranteed by the Convention. However, the

decision of a Contracting State to expel or extradite a person may give

rise to an issue under Article 3 (Art. 3) of the Convention, and hence

engage the responsibility of that State under the Convention, where

substantial grounds have been shown for believing that the person

concerned faces a real risk of being subjected to torture or to inhuman

or degrading treatment or punishment in the country to which he is to

be returned (Eur. Court HR, Vilvarajah and Others v. the United Kingdom

judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103).

75.   The question arises whether analogous considerations apply to

Article 2 (Art. 2), in particular whether this provision can also

engage the responsibility of a Contracting State where, upon expulsion

or other removal, the person's life is in danger.

76.   The Commission recalls that Article 2 (Art. 2) contains two

separate though interrelated basic elements. The first sentence of

paragraph 1 sets forth the general obligation that the right to life

shall be protected by law. The second sentence of this paragraph

contains a prohibition of intentional deprivation of life, delimited

by the exceptions mentioned in the second sentence itself and in

paragraph 2 (cf. No. 17004/90, Dec. 19.5.92, D.R. 73 p. 155).

77.   The Commission finds nothing to indicate that the expulsion of

the applicant would amount to a violation of the general obligation

contained in the first sentence of paragraph 1.

78.   As to the prohibition of intentional deprivation of life, the

Commission does not exclude that an issue might be raised under

Article 2 (Art. 2) in circumstances in which the expelling State

knowingly puts the person concerned at such high risk of losing his

life as for the outcome to be a near-certainty. The Commission

considers, however, that a "real risk" - within the meaning of the

case-law concerning Article 3 (Art. 3) (see paras. 74 and 88) - of loss

of life would not as such necessarily suffice to make expulsion an

"intentional deprivation of life" prohibited by Article 2 (Art. 2),

although it would amount to inhuman treatment within the meaning of

Article 3 (Art. 3) .

79.   It is not necessary for the Commission to decide in what precise

circumstances the risk of the person being killed might constitute a

violation of Article 2 (Art. 2) in a case like the present one, since

in any event the facts of the case do not disclose such a risk.

80.   The Commission notes that it appears from his submissions that

the applicant fears that he may die as a result of torture applied to

him in detention. However, for the reasons given in para. 78, the

Commission finds that this issue falls to be considered under Article 3

(Art. 3) (see paras. 82-102). Noting, furthermore, that the offences

of which the applicant is allegedly accused under Sections 384 and 121

of the Bangladesh Penal Law do not carry the death penalty, the

Commission considers that the applicant has not sufficiently

substantiated that his expulsion could constitute a violation of

Article 2 (Art. 2) .

      CONCLUSION

81.   The Commission concludes, unanimously, that in the present case

the expulsion of the applicant to Bangladesh would not be in violation

of Article 2 (Art. 2) of the Convention.

D.    As regards Article 3 (Art. 3) of the Convention

82.   Article 3 (Art. 3) of the Convention reads as follows:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

83.   The applicant submits that, if he is expelled to Bangladesh, he

is in danger of being arrested and tortured on account of his

activities for Shanti Bahini. Amnesty International in the Netherlands

have confirmed that there is a real risk of such treatment if it is the

case that the applicant provided Shanti Bahini with information about

troop movements and the Bangladeshi authorities are aware of this. The

applicant argues that he has sufficiently substantiated his involvement

with Shanti Bahini and the Bangladeshi authorities' knowledge of this

involvement, inter alia, by submitting documents whose authenticity has

not been disputed.

84.   The Government submit that there are no indications militating

against the applicant's expulsion since the applicant has been unable

to demonstrate convincingly that his fear of persecution is well-

founded.

85.   As regards the legal proceedings in which the applicant is

accused of extortion, the Government contend that the applicant has

failed to substantiate that these proceedings are politically

motivated. In this respect they submit that the applicant maintains

that these proceedings were instituted on the basis of statements of

his foster father, whereas the applicant has also claimed that his

foster father was unaware of his involvement with Shanti Bahini. In the

opinion of the Government, the applicant's fear of ill-treatment is

inspired solely by general remarks made by his acquaintances on the

general methods of interrogation used by the police and in this respect

there is no direct connection with any kind of political motive.

86.   The Government further argue that at various stages of the

domestic proceedings the applicant made conflicting statements with

regard to his membership of Shanti Bahini. Only at a very late stage

in the appeal proceedings was the applicant able to produce a document

which could be considered to constitute evidence of his membership of

this organisation. This document is the only concrete indication of the

applicant's political affinity with Shanti Bahini. However, the

applicant's relations with Shanti Bahini were only of a very marginal

character. He has not, in the Government's view, provided consistent

information on the subject of the gathering of information for Shanti

Bahini but, in any event, these activities at no time occasioned his

arrest. Furthermore, the protest demonstration in which the applicant

allegedly took part was organised by a legal political party and was

not in any way related to the position of Shanti Bahini.

87.   The Commission refers to para. 74 above, where it has reiterated

to which extent an expulsion may give rise to an issue under Article 3

(Art. 3)  of the Convention.

88.   In its assessment of the risk of ill-treatment the Commission has

considered the following principles to be relevant:

      i.   In determining whether substantial grounds have been shown

      for believing that a real risk of treatment contrary to Article 3

      (Art. 3) exists, the Commission will assess the issue in the

      light of all the material placed before it or, if necessary,

      material obtained proprio motu (cf. Eur. Court HR, Cruz Varas and

      Others v. Sweden judgment of 20 March 1991, Series A no. 201, p.

      29, para. 75).

      ii.  The assessment of the existence of the risk must be made on

      the basis of information currently available (cf. No. 22414/93,

      The Chahal Family v. the United Kingdom, Comm. Rep. 27.6.95,

      currently pending before the Eur. Court HR). The Commission may

      thus have regard to developments which have taken place in

      Bangladesh subsequent to the rejection of the applicant's

      requests for asylum.

      iii. Ill-treatment must attain a minimum level of severity if it

      is to fall within the scope of Article 3 (Art. 3). The assessment

      of this minimum is, in the nature of things, relative; it depends

      on all the circumstances of the case (cf. Vilvarajah and Others

      v. the United Kingdom judgment, loc. cit., p. 36, para. 107).

89.   In order to determine whether the applicant has shown that there

are substantial grounds for believing that he faces a real risk of

being subjected to treatment contrary to Article 3 (Art. 3) of the

Convention upon his return to Bangladesh, the Commission has first

examined the submissions made by the applicant in the course of the

asylum proceedings.

90.   The Commission notes that according to the applicant he has been

involved with Shanti Bahini since 1974, children being taught from an

early age to be on the alert for any army presence in the area (para.

20). He had begun collecting funds for Shanti Bahini in 1982/1984 and

from 1986 he had supplied this organisation with information about

movements of Government forces (para. 26). The domestic authorities

initially doubted whether the applicant had indeed been a member of

Shanti Bahini as the declaration purportedly issued by this

organisation was found not to be authentic (para. 32). However, the

applicant maintained that this declaration was genuine but that it had

been drawn up by a regional branch of Shanti Bahini (para. 36). He

subsequently submitted a declaration whose authenticity does not appear

to be in dispute between the parties. From the foregoing the Commission

considers it established that the applicant was a member of Shanti

Bahini.

91.   As regards the activities which the applicant carried out for

Shanti Bahini, the Commission notes that according to the Government

these were of a marginal character. It further notes that in the asylum

proceedings the domestic authorities found that it was not clear how

the applicant could have provided Shanti Bahini with valuable

information concerning troop movements (para. 32).

92.   The Commission observes that it is difficult to assess the value

of the information allegedly gathered by the applicant. In this respect

the Commission notes that it appears that travel restrictions apply in

the Chittagong Hill Tracts and that this area is subject to tight

security (para. 62). In these circumstances it cannot be excluded that

it would have been easier for the applicant, who was generally thought

to be a son of Bengali settlers (para. 20), to note the destination of

army boats and the location of army camps than for other indigenous

inhabitants of the area.

93.   It is true that the applicant was never arrested on account of

his activities for Shanti Bahini. However, it is the applicant's

contention that he left the country in order to escape such an arrest.

The applicant submits that he was told that a warrant for his arrest

had been issued after papers, drawn up by him and containing

information about movements of army troops, had been discovered in his

house.

94.   The Commission notes that the search of the applicant's house

allegedly took place following his participation in a demonstration

which had ended in clashes with the police. The Government appear to

argue that it is unlikely that the authorities went to the applicant's

house in these circumstances given the fact that the demonstration had

been organised by a legal political party and was not related to Shanti

Bahini. The Commission observes, however, that in his first interview

in the asylum proceedings the applicant stated that the demonstration

was directed against the automatic right of certain Bengali settlers

to stand in sub-district elections which frustrated demands for

regional autonomy of the Chittagong Hill Tracts (para. 21). At the

later hearing before the Advisory Committee on Aliens Affairs the

applicant specified that the name of the BNP was used for what had in

reality been a demonstration by Shanti Bahini (para. 28). In view of

the fact that Shanti Bahini is an illegal organisation which strives

for regional autonomy of the Chittagong Hill Tracts (para. 55), the

Commission finds the submissions of the applicant as regards this

demonstration credible.

95.   The Commission notes that the applicant has not provided any

direct evidence of his allegation that the authorities have issued an

arrest warrant. However, it also notes that according to the

applicant's lawyer in Bangladesh it is not possible under Bangladeshi

criminal law to obtain a copy of an arrest warrant until an accused

appears before a court (para. 48). Furthermore, it is stated in the

petition of complaint filed by Omar K. that prior to making this

complaint the authorities had become aware of the applicant's

involvement with Shanti Bahini and were seeking to arrest him (para.

49).

96.   As regards the complaint filed by Omar K. against the applicant,

the Commission notes the Government's submission that in the asylum

proceedings the applicant had maintained that the legal proceedings

concerning extortion had been instituted on the basis of statements

made by his foster father. The Commission can find no substantiation

of this claim by the Government in the documents submitted. On the

contrary, it notes that the applicant told the Advisory Committee for

Aliens Affairs that Omar K. had made the complaint and that it was true

that he used to collect money from him for Shanti Bahini.

97.   The Commission agrees with the Government that the complaint

filed against the applicant was made by a private person who accused

the applicant of the offence of extortion. However, it is clear from

the text of the complaint petition that the applicant is alleged to

have compelled Omar K. to pay illegal taxes to Shanti Bahini (para.

49). Thus, apart from accusing the applicant of extortion under Section

384 of the Bangladesh Penal Code, the complaint also expressly contains

the allegation that the applicant "waged illegal war" within the

meaning of Section 121 of the Bangladesh Penal Code. The Commission

considers that this denotes a political background to the offence. It

appears from the letter written by the applicant's lawyer in Bangladesh

that the offence of waging war against the State of Bangladesh carries

a penalty of life imprisonment (para. 47).

98.   The Commission considers the applicant's account to be credible

and on the whole consistent. It would agree with the President of the

Regional Court of The Hague (para. 25) that the fact that in his

interview with the Ministry of Justice the applicant did not correctly

state the date of the elections is insufficient to discredit the

account of the applicant. Accordingly, the Commission finds that the

applicant has convincingly shown that he is suspected of being involved

with Shanti Bahini.

99.   As regards the consequences of this suspicion and the treatment

which the applicant would encounter if expelled to Bangladesh, the

Commission observes in the first place that it appears that from 1994

efforts are being made to resolve the conflict in the Chittagong Hill

Tracts. The Commission notes that in this context the Government of

Bangladesh promulgated an amnesty for Shanti Bahini insurgents

returning from India who were convicted during the previous regime. It

is reported that the amnesty will stay in force as long as the dialogue

between the Government of Bangladesh and Shanti Bahini's political

wing, the JSS, continues. Furthermore, both parties to the conflict

agree at regular intervals to extend a cease-fire (paras. 57, 58 and

61).

100.  However, the Commission also notes that in 1995 no political

solution had yet been reached. There were still continuing reports from

the Chittagong Hill Tracts of ill-treatment, harassment and arbitrary

detention of tribal people with the acquiescence or active

participation of the police (para. 59). Furthermore, police in

Bangladesh were reported routinely to employ psychological and physical

torture and other abuse during arrests and interrogations (paras. 60

and 63).

101.  As to the position of the applicant, the Commission notes that

he was not convicted during the previous regime in Bangladesh and it

may therefore not be assumed that he will be able to benefit from the

amnesty, even assuming that it is still in force. Moreover, the

Commission considers the existence of a suspicion of the applicant's

involvement with Shanti Bahini to constitute a special distinguishing

feature in this case (cf. mutatis mutandis the Vilvarajah and Others

v. the United Kingdom judgment, loc. cit., p. 37, para. 112). Having

regard furthermore to the practices of the Bangladeshi police referred

to above, the Commission finds that substantial grounds have been

established for believing that the applicant would be exposed to a real

risk of ill-treatment, contrary to Article 3 (Art. 3) of the

Convention, if deported to Bangladesh.

      CONCLUSION

102.  The Commission concludes, by 26 votes to 5, that in the present

case the expulsion of the applicant to Bangladesh would be in violation

of Article 3 (Art. 3) of the Convention.

E.    Recapitulation

103.  The Commission concludes, unanimously, that the expulsion of the

applicant to Bangladesh would not be in violation of Article 2 (Art. 2)

of the Convention (para. 81).

104.  The Commission concludes, by 26 votes to 5, that the expulsion

of the applicant to Bangladesh would be in violation of Article 3

(Art. 3) of the Convention (para. 102).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

                                                        (Or. English)

        DISSENTING OPINION OF MRS. J. LIDDY, MM. E. BUSUTTIL,

                J.-C. SOYER, K. HERNDL AND E.A. ALKEMA

      We voted against the majority's finding in para. 102 of the

Report that in the present case the expulsion of the applicant to

Bangladesh would be in violation of Article 3 of the Convention.

      According to the applicant he has been involved with the illegal

organisation Shanti Bahini for a long time. He submits that the

Bangladeshi authorities are aware of this involvement following the

discovery in his house of papers drawn up by him. His activities for

Shanti Bahini have also been brought to the attention of the

Bangladeshi authorities by a complaint that a certain Omar K. has filed

against him in which he is accused of having committed the offence of

extortion on behalf of Shanti Bahini (paras. 20, 21, 26, 27 and 29).

      We note in the first place that the declaration which the

applicant initially submitted as evidence of his membership of Shanti

Bahini was found by the Dutch authorities not to be authentic (para.

32). Furthermore, in his interview with an official of the Ministry of

Justice, the applicant stated that the search of his house had taken

place after he had been seen to participate in a demonstration

organised by a legal party on 16 April 1990 (para. 21). However, the

aim of this demonstration was connected to sub-district elections which

at that time had apparently already taken place (para. 33). Although

the President of the Regional Court of The Hague in his decision of 14

November 1991 did not rule out the possibility that he applicant had

made a mistake in respect of the date of the demonstration (para. 25),

it does not appear that at any stage of the asylum proceedings the

applicant attempted to correct this mistake. If, on the other hand, it

is to be assumed that the demonstration in fact took place on 16 March

1990, one is surprised to see that the applicant stayed in Bangladesh

for another three and a half months after the demonstration without

experiencing problems from the side of the authorities despite the fact

that, as is submitted by him, they had issued a warrant for his arrest.

      As regards the complaint by Omar K. that the applicant extorted

money from him, we draw attention to the fact that Omar K. is alleged

to have filed his complaint against the applicant six years after he

had begun paying the taxes allegedly demanded by the applicant (para.

27). In this respect we also observe that at the hearing before the

Advisory Committee on Aliens Affairs the applicant stated that he went

to Omar K. to collect money with three other people (para. 27). It has

not been submitted that these three other people have also left

Bangladesh or that the Bangladeshi authorities had become aware of

their involvement with Shanti Bahini. In these circumstances it appears

rather unlikely that Omar K., who allegedly feared for his life, would

have filed a complaint against the applicant at a moment when the three

other people involved were still in the area.

      We further note the fact that from 1994 onwards efforts were made

to resolve the conflict in the Chittagong Hill Tracts. In this context

the Government of Bangladesh promulgated an amnesty for Shanti Bahini

insurgents who were convicted during the previous regime. It is

reported that the amnesty will stay in force as long as the dialogue

between the Government of Bangladesh and Shanti Bahini's political

wing, the JSS, continues. Furthermore, both parties to the conflict

agree at regular intervals to extend a cease-fire (paras. 57, 58 and

61).

      Although in 1995 there were still reports from the Chittagong

Hill Tracts indicating that the situation in the area continued to be

unsettled (paras. 59, 60, 62 and 63), the amnesty combined with the

ongoing dialogue between the political opponents provide a strong

indication that the situation in the area has improved. It is true that

in such an unsettled situation the possibility still could exist that

the applicant could be detained and ill-treated. However, we wish to

recall in this context that a mere possibility of ill-treatment is not

in itself sufficient to give rise to a breach of Article 3 (cf.

Vilvarajah and Others v. the United Kingdom judgment, loc. cit., p. 37,

para. 111).

      In these circumstances, we find that no substantial grounds have

been established for believing that the applicant would be exposed to

a real risk of being subjected to treatment contrary to Article 3 of

the Convention if returned to Bangladesh.

      Accordingly, in our view, the expulsion of the applicant to

Bangladesh would not be in violation of Article 3 of the Convention.