THIRD SECTION

DECISION

Application nos. 978/09 and 992/09 H. against the Netherlands and J. against the Netherlands

The European Court of Human Rights (Third Section), sitting on 13 November 2014 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra, Ján Šikuta , Dragoljub Popović , Kristina Pardalos , Valeriu Griţco , Iulia Antoanella Motoc , judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 7 January 2009,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, Mr H., was born in 1948 and lives in Boskoop . The second applicant, Mr J., was born in 1946 and lives in Benschop . Both applicants are Afghan nationals; both were represented before the Court by Mr G.G.J. Knoops and Ms J.M. Eelman , lawyers practising in Amsterdam.

2. The facts of the cases, as submitted by the applicants and as apparent from documents available to the public, may be summarised as follows.

A. Historical background

3. Between 1978 and 1992 Afghanistan was a Communist dictatorship. It had an intelligence and secret police organisation called (in Pashto) Khadamat -e Aetela ’ at -e Dawlati (State Intelligence Agency), better known by its acronym KhAD , which became Wizarat-i Amaniyyat-i Dawlati (Ministry for State Security), known as WAD, in 1986.

B. Asylum proceedings

1. Mr H.

4. Mr H. requested admission as a refugee ( toelating als vluchteling ) in the Netherlands on 24 September 1992, shortly after his arrival.

5. On 5 October 1992 Mr H. was questioned about the reasons for his asylum request by an official of the Immigration and Naturalisation Service ( Immigratie - en naturalisatiedienst ) . The report drawn up by the official states that Mr H. was warned of the importance of the interview and asked to tell the truth.

6 . Mr H. gave a summary of his career as an army officer. From being a major in 1979-80, he had been promoted to command a brigade by 1981. He had afterwards become the head of security of the Ministry of Internal Affairs, then head of intelligence and military counter-espionage. Around 1987 he had in addition become deputy minister of security and a member of the Central Committee of the Democratic People ’ s Party (Afghanistan ’ s ruling Communist party). In 1991 Mr H. had been appointed military attaché at the Afghan embassy in Moscow; he felt this to be a demotion. After the overthrow of the Communist regime in 1992, he had sought asylum in the Netherlands.

7 . A further interview ( nader gehoor ) took place on 1 and 8 March 1993. The reporting official took down the following statement from Mr H.:

“I do not yet know what I will state but I want the statement you are about to take from me to be treated confidentially. Furthermore, I do not wish a copy of this report to go to the Legal Aid Bureau ( bureau voor rechtshulp ).”

8. Mr H. gave further details of his career. A brigadier in 1982, he had become the head of the military wing of KhAD within the ministry of internal affairs. In 1982 he had been transferred to the ministry of defence to head that ministry ’ s own KhAD department. In early 1984 the KhAD directorates of the Ministries of Internal Affairs and Defence had been merged into one directorate, with Mr H. as its head; this had brought with it his promotion to the rank of lieutenant general. In early 1985 he had been appointed deputy director of KhAD . When KhAD was turned into an independent ministry, WAD, Mr H. had become the deputy minister responsible for military intelligence. In 1988 Mr H. had been promoted to colonel general and appointed to the Central Committee of the Democratic People ’ s Party. Mr H. denied that acts of torture had been committed by him or under his responsibility.

9. On 1 February 1994 the Head of the Immigration and Naturalisation Service gave a decision on behalf of the Deputy Minister of Justice ( staatssecretaris van justitie ) dismissing Mr H. ’ s request for asylum. It noted Mr H. ’ s high rank and responsible position within KhAD /WAD. Rejecting Mr H. ’ s denials as “bald and implausible statements”, the decision stated that it was common knowledge that the Afghan KhAD /WAD “was guilty of torture and other very serious human rights violations on a considerable scale”. Even supposing that Mr H. had not actually ordered any acts of torture, he had to be considered to have acquiesced in, and permitted, such practices. There were accordingly grounds to assume that Mr H. had been guilty (in a leadership role or as a co-perpetrator or accomplice) of crimes against humanity within the meaning of Article 1F, introductory sentence and (a), of the 1951 United Nations Convention Relating to the Status of Refugees (hereafter “the 1951 Refugee Convention”) and Article 1 § 1 of the Convention against Torture, or in the alternative, that he had been guilty of acts within the meaning of Article 1F, introductory sentence and (c), of the 1951 United Nations Convention Relating to the Status of Refugees, that is, acts contrary to the purposes and principles of the United Nations.

10. It would appear that Mr H. challenged this decision in the competent administrative tribunals but without success. However, he was not deported from the Netherlands.

2. Mr J.

(a) Asylum proceedings

11. Mr J. requested admission as a refugee in the Netherlands on 31 May 1996, shortly after his arrival.

12. On 7 and 10 June 1996 Mr J. was questioned about the reasons for his request. It is reflected in the report drawn up by the reporting official that Mr J. had been informed of the importance of the interview as part of the asylum proceedings and warned not to withhold any information concerning his asylum request, and that he had been told that all information given would be treated as confidential.

13. Mr J. stated that he had been an army officer holding the rank of general under the former Communist regime, that he had worked for the interrogation service of WAD and that he had received training in the former Soviet Union. He had been the head of the interrogation department of the military department of KhAD /WAD between 1979 until 1989. He denied all knowledge of torture under his responsibility.

14. Mr J. was recognised as a refugee within the meaning of the 1951 Refugee Convention at an unknown date.

(b) Withdrawal of asylum

15. On 7 January 1999 a supplementary interview ( aanvullend gehoor ) with Mr J. took place. The interviewing official told Mr J. that he could speak freely and that everything discussed would be treated as confidential.

Mr J. admitted that KhAD /WAD “did not take human rights seriously” and stated that Mr H. had been responsible for “the deaths of many tens of thousands of Afghans” but denied personal involvement in acts of torture.

16. On 31 July 2000 the Deputy Minister of Justice gave a decision withdrawing recognition of Mr J. ’ s refugee status. The decision cites an official report by the Ministry of Foreign Affairs that describes, among other things, the organisation and methods of KhAD /WAD and the recruitment and training of its members and concludes that all non-commissioned and commissioned officers of that organisation were personally implicated in “arresting, interrogating, torturing and sometimes executing suspects”. The decision states that Mr J., who was head of interrogations of the military KhAD and was promoted to the rank of general, must necessarily have been aware of the acts of torture and maltreatment for which he bore command responsibility, despite his denials. The decision is grounded on Article 1F of the 1951 Refugee Convention.

17. Mr J. was not deported from the Netherlands.

C. Handover to the public prosecutor

18. On 31 July 2000 the Deputy Minister of Justice forwarded the decision withdrawing recognition of Mr J. ’ s refugee status to the public prosecutor ( officier van justitie ) with a request to consider whether Mr J. could be prosecuted.

19. On 4 September 2000 the Deputy Minister of Justice forwarded the decision refusing Mr H. admission as a refugee to the public prosecutor, also with the request to consider the possibility of prosecution.

D. The police investigation

20. On 4 March 2004 Mr J. was heard as a witness in a criminal investigation against Mr H. by two criminal investigators. The investigators cautioned Mr J. and explained to him that he did not have to answer questions that might incriminate him.

21. Mr J. admitted that he had been a subordinate of Mr H. but denied that he or Mr H. had been responsible for torture; any such acts had been committed by the civilian arm of KhAD /WAD, not by the military arm.

22. Another police report, dated 21 October 2004 and prepared for submission to the public prosecutor, summarises information incriminating Mr J. obtained from diverse sources. It includes pointed references to Mr J. ’ s statements to the Immigration and Naturalisation Service. It also includes a reference to an official report by the Ministry of Foreign Affairs from which it appears that torture was systematic in KhAD /WAD interrogation and detention centres, and quotations from statements made by other persons.

23. On 27 November 2004 Mr H. was arrested and questioned. The official record shows that he was informed of the crimes of which he was suspected and told that he was under no obligation to answer questions. His statement, as taken down by the police interrogators, included the allegation that he had acted to prevent and, if necessary, punish acts amounting to maltreatment committed by his subordinates. He also denied that Mr J. had been involved in any acts of torture while under his command.

E. Criminal proceedings

24 . The applicants were tried in parallel but separately before the Regional Court ( rechtbank ) of The Hague. They were charged with having, in their respective capacities as members of the KhAD bearing command responsibility, inter alia subjected civilian and non-combatant enemy prisoners to electric shocks, beaten them with sticks and other objects, subjected them to cold and sleep deprivation, and compressed their fingers between a door and the door frame after which (in one case) a prisoner ’ s finger had to be amputated, which was done with a pair of scissors and without anaesthetic; or in the alternative, deliberately allowing these acts to be committed by subordinates.

1. Mr H.

(a) Proceedings in the Regional Court

25. On 8 and 9 August 2005 witnesses were heard by an investigating judge ( rechter-commissaris ) at the Netherlands embassy in Kabul, including an alleged victim of torture, A.G.T. The public prosecutor was present. Mr H. ’ s counsel did not attend. The official record states that she had been offered the opportunity to put questions in writing but had not done so.

26. It is apparent that Mr H. ’ s counsel were not able to obtain private insurance for the journey to Kabul. The applicant has submitted a public statement by the Netherlands Ministry of Foreign Affairs strongly advising Netherlands nationals against travelling to Afghanistan, including to Kabul, at that time in view of the dangers resulting from hostile action.

27. The Regional Court gave judgment on 14 October 2005. It convicted Mr H. of complicity ( medeplegen ) in torture, contrary to section 1(1) of the Convention Against Torture (Implementation) Act ( Uitvoeringswet Folterverdrag ), and of deliberately permitting a subordinate to violate the laws and customs of war by joining in the commission of acts of violence against persons and by causing grievous bodily harm, contrary to sections 8 and 9 of the War Crimes Act ( Wet Oorlogsstrafrecht ).

28. Concerning the use in evidence of Mr H. ’ s statements in the immigration proceedings, the Regional Court found that these statements had not been taken for the purpose of any criminal investigation or prosecution but solely to determine his claims under immigration law.

29. As regards the witness A.G.T., the Regional Court found that the possibilities offered to the defence to cross-examine him – which had included the possibility to put questions in writing, and even to ask for a video conference – had been adequate. At all events, A.G.T. ’ s statement was consistent with, and adequately supported by, other evidence.

30. The transfer of the file of the asylum proceedings to the public prosecution service had admittedly interfered with Mr H. ’ s rights under Article 8 of the Convention, but this interference had been necessary for the prosecution of crimes amounting to war crimes and thus served a “pressing social need”.

31. The Regional Court sentenced Mr H. to twelve years ’ imprisonment.

(b) Proceedings in the Court of Appeal

32 . Mr H. appealed to the Court of Appeal ( gerechtshof ) of The Hague.

33. The Court of Appeal gave judgment on 29 January 2007. It quashed the judgment of the Regional Court on technical grounds; then, like the Regional Court, it found Mr H. guilty of complicity in torture, contrary to section 1(1) of the Convention Against Torture (Implementation) Act, and of deliberately permitting a subordinate to violate the laws and customs of war by joining in the commission of acts of violence against persons and by causing grievous bodily harm, contrary to sections 8 and 9 of the War Crimes Act, and sentenced him to twelve years ’ imprisonment.

34. As regards the use made of the statements given by Mr H. in the asylum proceedings, the Court of Appeal first found that the case was distinguishable from Saunders v. the United Kingdom , 17 December 1996, Reports of Judgments and Decisions 1996 ‑ VI. Unlike the applicant in that case, Mr H. had not been forced on pain of punishment to give information that was afterwards used against him at his trial. Rather, Mr H. had voluntarily subjected himself to the Netherlands immigration procedures, which entailed for him the obligation to give information about himself . Moreover, the use made of the information thus obtained was not the same as in the Saunders case: Mr H. had denied all wrongdoing, and the only incriminating information he had given related to his high rank within KhAD /WAD.

35 . The Court of Appeal considered, like the Regional Court, that while the transfer of the file of the asylum proceedings to the prosecuting authorities constituted an interference with Mr H. ’ s right to respect for his “private life”, within the meaning of Article 8 of the Convention, the importance of prosecuting crimes amounting to war crimes provided adequate justification.

(c) Proceedings in the Supreme Court

36. Mr H. lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ). In the part relevant to the present case, he complained about the use in evidence of the statement of the witness A.G.T., alleging that the defence had been denied a proper opportunity to cross-examine him.

37. The advisory opinion ( conclusie ) of the Advocate General included a quotation from the official record of a hearing of the Court of Appeal, from which it appeared that Mr H. ’ s counsel had admitted that the defence had in the meantime been given the opportunity to cross-examine the witness A.G.T. and had made use of it.

38. On 8 July 2008 the Supreme Court delivered its judgment (ECLI :NL:HR:2008:BC7418 ) dismissing the appeal on points of law in its entirety. It summarily dismissed Mr H. ’ s above-mentioned complaint (see paragraph 36 above).

2. Mr J.

(a) Proceedings in the Regional Court

39. The Regional Court gave judgment on 14 October 2005. It convicted Mr J. of participating in violations of the laws and customs of war in that he had committed acts of violence against persons and in that he had caused grievous bodily harm, contrary to section 8 of the War Crimes Act and Article 47 of the Criminal Code and sentenced him to nine years ’ imprisonment. Its reasoning, as relevant to the case before the Court, was identical to that in Mr H. ’ s case (see paragraphs 28 and 30 above).

(b) Proceedings in the Court of Appeal

40. Mr J. appealed to the Court of Appeal of The Hague.

41. The Court of Appeal gave judgment on 29 January 2007. It quashed the judgment of the Regional Court on technical grounds; then, like the Regional Court, it found Mr J. guilty of having participated in violations of the laws and customs of war in that he had committed acts of violence against persons and had caused grievous bodily harm and sentenced him to nine years ’ imprisonment. Its reasoning was identical, in the relevant respects, to that in the judgment convicting Mr H. (see paragraphs 34-35 above).

(c) Proceedings in the Supreme Court

42. Mr J. lodged an appeal on points of law with the Supreme Court. As relevant to the present case, he complained of the use by the criminal courts of his statements in the asylum proceedings, which statements had, in his submission, been obtained by coercion.

43. The advisory opinion ( conclusie ) of the Advocate General stated that the asylum proceedings had not been a subterfuge used to circumvent the criminal suspect ’ s right to silence, and had not otherwise been linked to the criminal proceedings. The case differed from those of Saunders ( cited above ) and Funke ( Funke v. France , 25 February 1993, Series A no. 256 ‑ A), decided by the Court, in that there had been no use made of a separate procedure to elicit a confession from the suspect with the aim of using it against him.

44. While an asylum seeker was required to provide complete and accurate information, this served the need properly to assess the asylum claim, as the state whose protection was sought had the right and the duty to do. The asylum seeker might feel pressurised into speaking (although Mr J. had “clearly” been less than “entirely frank”), but this did not amount to coercion comparable to that considered in Saunders and Funke . Nor could the Immigration and Naturalisation Service ’ s undertaking to deal confidentially with the information thus obtained be construed as a promise not to divulge it to the prosecuting authorities.

45. The transfer of the file from the asylum proceedings to the prosecuting authorities nonetheless raised an issue under Article 8 of the Convention. As it was, however, a statutory basis for this existed, namely section 43 (b) of the Personal Data Protection Act ( Wet bescherming persoonsgegevens ), and the suspicion that serious war crimes had been committed provided sufficient justification. If in a particular case a criminal suspect could not be deported to his country of origin because of the fate that probably awaited him there, given his former position and his actions as an official serving a previous, repressive regime, it did not follow that he should for that reason enjoy impunity.

46. The Supreme Court gave judgment on 8 July 2008 dismissing Mr J. ’ s appeal with summary reasoning (ECLI :NL:HR:2008:BC7421 ; English translation published by the Government ECLI:NL:HR:2008:BG1477). As relevant to the case before the Court, it endorsed and adopted as its own the reasoning put forward by the Advocate General in his advisory opinion.

F. Relevant domestic law

47. At the relevant time, domestic legislation relevant to the case provided as follows:

1. General administrative law

The General Administrative Law Act ( Algemene wet bestuursrecht )

Section 4.2

“1. A request ( aanvraag ) [for an administrative decision] shall be signed and shall comprise, at least:

(a) the name and address of the person making it;

(b) the date;

(c) an indication of the decision requested.

2. The person making the request shall in addition submit the information and documents needed for the decision to be made on the request and which he can reasonably obtain.”

2. Immigration law

(a) The 1965 Aliens Act ( Vreemdelingenwet )

Section 15

“1. Aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious, philosophical or political conviction, or of belonging to a particular race or a particular social group, may apply to the Minister of Justice for admission as refugees.

2. Admission cannot be refused, except for weighty reasons derived from the general interest, if the alien would as a result be compelled to travel to a country as referred to in the first paragraph. ...”

(b) The Aliens Decree ( Vreemdelingenbesluit )

Section 65

“Aliens shall be obliged to provide to an official charged with guarding the borders or the supervision of aliens all information and to show them any and all documents in their possession which may serve to establish:

(a) their identity, nationality, civil status, profession, and their present and former places of residence or abode, with the addresses;

(b) the date, place and means of their entry into the Netherlands;

(c) the purpose and duration of their intended stay in the Netherlands;

(d) the [financial] means which they have at their disposal for the purpose of their stay in the Netherlands, or which they can obtain.”

3. Protection of personal data

The Personal Data Protection Act

Section 9

“1. Personal data shall not be further processed in a way which is incompatible with the purposes for which they are obtained.”

Section 43

“The person responsible ( verantwoordelijke , i.e. the natural or legal person or anyone else, or the public body, that determines, alone or together with others, the purpose of and the means for the processing of personal data; section 1, under (d), of the Personal Data Protection Act) may decide not to apply section 9(1) ... in so far as this is necessary in the interests of:

(a) national security;

(b) the prevention, investigation and prosecution of criminal acts; ...”

4. Domestic general criminal law and procedure

(a) Criminal Code ( Wetboek van Strafrecht )

Article 47

“1. The following persons shall be punished as perpetrators of a criminal act ( daders van een strafbaar feit ):

1 o . anyone who commits such act, has someone else commit it or participates in its commission;

2 o . anyone who, by gifts, promises, abuse of authority, violence, threats or deceit, or by providing the opportunity, the means or information, intentionally solicits the commission of such act. ...”

(b) Code of Criminal Procedure

Article 162

“1. Public bodies and officials ( openbare colleges en ambtenaren ) who, in discharging their duties, become aware of an indictable offence ( misdrijf ) which they themselves are not responsible for investigating shall report the offence without delay and hand over any documents relevant to the case to the public prosecutor or one of his assistant public prosecutors ( hulpofficieren van justitie ),

...

(b) if the indictable offence was committed by an official ( ambtenaar ) who in so doing breached a specific official duty or made use of any power, opportunity or means available to him by virtue of his official position, or

(c) if the indictable offence entails the breach or unlawful application of a regulation which it is their duty to implement or to enforce. ...”

5. Domestic legislation on war crimes and torture

(a) The War Crimes Act

Section 1

“...

3. The expression ‘ war ’ shall be interpreted so as to include civil war ( burgeroorlog ).”

Section 3

“Without prejudice to the relevant provisions of the Criminal Code ( Wetboek van Strafrecht ) and the Military Criminal Code ( Wetboek van Militair Strafrecht ), Netherlands criminal law shall apply:

1. to any person who, outside the realm in Europe [i.e. the Netherlands proper], commits a crime as set out in sections 8 and 9; ...”

Section 8

“1. Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years ...

2. A term of imprisonment not exceeding fifteen years ... shall be imposed:

1 o if the criminal act is liable to result in someone else ’ s death or cause them severe bodily injury;

2 o if the criminal act involves inhuman treatment;

3 o if the criminal act involves forcing someone else to do something, not to do something or suffer something to happen;

4 o if the criminal act involves looting.

3. Life imprisonment or a temporary term of imprisonment not exceeding twenty years ... shall be imposed:

1 o if the criminal act results in someone else ’ s death or causes them severe bodily injury or involves rape;

2 o if the criminal act involves violence by a plurality of persons acting in concert ( geweldpleging met verenigde krachten ) against one or more persons or violence against a dead, sick or injured person;

3 o if the criminal act involves the destruction, damaging, putting beyond use or hiding, by a plurality of persons acting in concert, of any property belonging to someone else in whole or in part;

4 o if the criminal act set out under sub-paragraphs 3 o or 4 o of the preceding paragraph is committed by a plurality of persons acting in concert;

5 o if the criminal act is an expression of a policy of systematic terror or unlawful action ( wederrechtelijk optreden ) against the entire population or a particular group thereof;

6 o if the criminal act involves the breaking of a promise or the breaking of an agreement entered into as such with the opposing party;

7 o if the criminal act involves the misuse of a flag or emblem protected by the laws and customs of war or the military distinctive signs or uniform of the opposing party.”

Section 9

“The same punishment as threatened against the acts referred to in the previous article shall be imposed on whoever deliberately allows such an act to be committed by a subordinate.”

(b) The Convention Against Torture (Implementation) Act

Section 1

“1. Maltreatment committed by a civil servant or a person otherwise in government service in the exercise of his official functions against someone who is deprived of his liberty with intent to extract from them information or a confession, to punish them, instil fear in them or another person or force them to do something or suffer something to happen, or with contempt for their claims to human equality, shall, if these acts are of such a nature that they may further the intended aim, be punishable as an act of torture with a term of imprisonment not exceeding fifteen years or a fifth-category fine.

2. The deliberate infliction of a condition of great fear or another form of serious mental distress ( geestelijke ontreddering ) shall be regarded as maltreatment.

3. If the act results in death, the guilty person shall be punished with life imprisonment or a term of imprisonment not exceeding twenty years or a fifth-category fine.”

Section 2

“The same punishment as that applicable to the acts referred to in the preceding section shall be imposed on:

(a) a civil servant or a person otherwise in government service who solicits the form of maltreatment referred to in section 1 by one of the means stated in Article 47 § 1, sub-paragraph 2, of the Criminal Code or who deliberately allows another person to commit such form of maltreatment;

(b) anyone who commits the form of maltreatment referred to in section 1, if a civil servant or a person otherwise in government service has solicited it by one of the means stated in Article 47 § 1, sub-paragraph 2, of the Criminal Code or has deliberately allowed it.”

Section 5

“Netherlands criminal law shall apply to anyone who commits one of the indictable offences ( misdrijven ) defined in sections 1 and 2 of the present Act.”

6. Relevant domestic case-law

48. In a decision of 11 November 1997 reported in the Nederlandse Jurisprudentie (Netherlands Law Reports) 1998 (no. 463), the Supreme Court held as follows:

“5.2. That it certainly was the Government ’ s intention to comply in full with that treaty obligation [to criminalise all serious breaches of the four 1949 Geneva Conventions] is apparent from, among other things, the parliamentary history of that Act, in particular from the Explanatory Memorandum ( Memorie van Toelichting ) and the Memorandum in Reply ( Memorie van Antwoord ) pertaining to the Bill in question, which respectively include the following passages:

‘ When another power that is a party to the violated Convention does not request the transfer ( overlevering ) of a prisoner of war who is in the hands of the Netherlands, it should be possible for him to be tried by a Netherlands court, even though the indictable offence may have been committed abroad, and even if the criminal act has not been committed against a Netherlands national or harms no Netherlands interest. ’

and

‘ The provision enacted in section 3(1) grants the Netherlands courts jurisdiction to try war crimes, regardless of by whom and where they have been committed, that is to say also in those cases in which the indictable offence has been committed by a non-Netherlands national outside the Netherlands in a war to which our country is not a party. It is rightly pointed out in the Provisional Report ( Voorlopig Verslag ) that this provision is to be seen as an application of the so-called principle of universality. ’

5.3. In view of the finding contained in paragraph 5.2 above, a reasonable interpretation of the law, in accordance with the legislature ’ s intention to comply in full with the treaty obligations entered into by the Netherlands, makes it necessary to understand section 1 of the War Crimes Act – despite its, to that extent, opaque wording – in such a way that the limitations comprised in subsections 1, 2 and 3 respectively of section 1 of the War Crimes Act have no bearing on sections 8 and 9, and to that extent, not on section 3 ... either.”

G. Relevant international law

1. The 1949 Geneva Conventions

49. The Kingdom of the Netherlands and Afghanistan are both parties to the 1949 Geneva Conventions (Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; and Convention (IV) relative to the Protection of Civilian Persons in Time of War). The Kingdom of the Netherlands ratified them on 3 August 1954. Afghanistan did so on 26 September 1956. Both States were among the original signatories when the four Geneva Conventions were opened for signature on 12 August 1949; neither has entered any reservation.

50. Article 3 common to all four 1949 Geneva Conventions reads as follows:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

51. In the relevant part, Convention (IV) relative to the Protection of Civilian Persons in Time of War additionally provides as follows:

Article 146

“The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a ‘ prima facie ’ case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.”

Article 147

“Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

2. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

52. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984. It entered into force on 26 June 1987. Both the Netherlands and Afghanistan signed it on 4 March 1985. Afghanistan ratified it on 1 April 1987; the Netherlands, on 21 December 1988.

53. In its relevant parts, it reads as follows:

Article 1

“1. For the purposes of this Convention, the term ‘ torture ’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”

Article 2

“1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”

Article 3

“1. No State Party shall expel, return ( ‘ refouler ’ ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

Article 4

“1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”

Article 5

“1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”

Article 6

“1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph I of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4.When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.”

Article 7

“1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.”

Article 8

“1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.”

3. The 1951 United Nations Convention relating to the Status of Refugees as amended by the New York Protocol of 31 January 1967

54. The 1951 United Nations Convention Relating to the Status of Refugees was laid open for signature on 28 July 1951. The Netherlands signed it on the same day and ratified it on 3 May 1956. This Convention was amended by the New York Protocol of 31 January 1967, which entered into force on 4 October 1967 a nd to which the Netherlands acceded on 29 November 1968.

55. As currently binding on the Netherlands, and in its relevant parts, it provides as follows:

Article 1

A

“For the purposes of the present Convention, the term ‘ refugee ’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

F

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”

Article 32

Expulsion

“1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. ...”

Article 33

Prohibition of expulsion or return (“ refoulement ”)

“1. No Contracting State shall expel or return ( ‘ refouler ’ ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. ...”

H. Relevant domestic policy

“ Starting points of 1F policy

1. The starting point of the policy concerning Article 1F [of the 1951 Refugee Convention] is that this Article should be construed restrictively, considering also the consequences of exclusion for the person concerned. This starting point is set out in the UNHCR Handbook and in the settled case-law of the Administrative Jurisdiction Division of the Council of State. I construe this starting point in the sense that I take it upon myself to ground exclusion under Article 1F on a painstaking investigation and thorough reasoning. ...

2. In view of the many questions from your House, the critical remarks from society and the concerns of refugee organisations about the consideration of asylum requests from persons suspected of international crimes and violating human rights, I consider it desirable to do justice, whenever possible, to the intention of the 1951 Refugee Convention to protect those who flee injustice, and not those who flee justice. This means that whenever I have occasion to apply Article 1F, in view of the information available to me about the function of the person concerned, their work, the nature of the organisation in which they were employed, and the political situation in their country of origin, I will not hesitate to do so. I will see to it that the possibilities of applying Article 1F in relation to provisions in international instruments on the basis of which the violation of certain human rights and the commission of certain criminal acts are forbidden are made use of to the best possible effect. In concrete terms, this means that the processing of Article 1F cases will be concentrated in one district of the Immigration and Naturalisation Service, that specialised officials will be responsible for taking the decisions and that training will be organised for these officials in, among other things, the field of humanitarian law of war.

Such an approach is also desirable in connection with the international obligations which the Netherlands has assumed. In this connection I am thinking, in particular, of the four Geneva Conventions of 12 August 1949 relating to the protection of the victims of armed conflict ..., the 1977 Additional Protocols to these Conventions ..., the Genocide Convention ... and the Convention against Torture of 10 December 1984 ... [as regards] crimes committed during (civil) war and torture and other cruel, inhuman or degrading treatment or punishment. It cannot be that when on the one hand the Netherlands has taken upon itself the moral and legal obligation to prevent such crimes, on the other hand it admits persons who have committed these crimes elsewhere as refugees.

3. A final point of departure concerns the attaching of further consequences to exclusion for the position of the person concerned in the Netherlands. The thought underlying the above-mentioned treaties is that persons who have committed the crimes therein proscribed should not be allowed to evade their (international) criminal responsibility. The Netherlands has undertaken, pursuant to these treaties, to take responsibility for either punishing or extraditing persons suspected of these crimes on the basis of the adage aut dedere aut judicare *. In view of the spirit and purport of these treaties, I will, in such cases, make use of my competence to impose an exclusion order based on section 21 of the Aliens Act [i.e. the exclusion of an undesirable alien] on persons excluded from refugee status pursuant to Article 1F. In addition, in all cases in which I have decided to exclude a person from the protection of the 1951 Refugee Convention pursuant to Article 1F, I will inform the Public Prosecution Service accordingly.

It should be stressed that a criminal prosecution is not a necessary condition for the application of Article 1F. Moreover, the standard of proof is much stricter within the framework of a criminal prosecution than within the framework of Article 1F, since in the latter case even ‘ reasons for considering ’ [that the person has committed the crimes in issue] are sufficient for its application. In a number of cases there is an obligation to report the case to the Public Prosecution Service. For example, under Article 162 § 1 (b) of the Code of Criminal Procedure in conjunction with Article 6 § 2 of the Convention against Torture, Netherlands officials who have information about acts proscribed by the Convention against Torture committed by a foreign official who has made use of powers, an opportunity or means available to him by virtue of his official position are required to report such acts and hand over the documents relating to the case.

The Public Prosecution Service has a discretion of its own as regards the initiation of a criminal investigation. This means that the Public Prosecution Service will decide, in the light of, inter alia , the Immigration and Naturalisation Service case file, to what extent a criminal prosecution is opportune. The Public Prosecution Service can initiate a criminal prosecution based on the Convention against Torture (Implementation) Act, for acts committed after 19 January 1989, the date of the entry into force of that treaty in respect of the Netherlands, and based on the Genocide Convention (Implementation) Act ( Uitvoeringswet Genocideverdrag ) ... and on the War Crimes Act ...

The Supreme Court has recently held that the Netherlands courts are also competent to try war crimes and the like that have been committed in a war in which the Netherlands is not involved, and that the military [criminal] tribunals are competent**.

*( footnote ): Pursuant to this basic rule, which is derived from Hugo Grotius, States are obliged either to extradite ( aut dedere ) or themselves to try ( aut judicare ) persons who have committed international crimes. This obligation flows from international treaties.

* *( footnote ) [Case-law reference, omitted]”

COMPLAINTS

57 . Mr H. and Mr J. both complained under Article 6 § 1 of the Convention that they had been convicted on the basis of incriminating statements which they had made in the asylum proceedings under coercion and in return for a promise of confidentiality, and that they had been confronted with these statements during the criminal investigation.

58. They also complained under Article 8 of the Convention that the use in the criminal proceedings of information from the files of the asylum proceedings constituted a violation of their right to respect for their private life.

59. Mr H., relying on Article 6 § 1 taken together with Article 6 § 3 (d), complained in addition that he had been convicted on the evidence of a witness whom the defence had been prevented from cross-examining.

T HE LAW

A. Joinder of the cases

60. The Court considers that the applications should be joined, given their related factual and legal background (Rule 42 § 1 of the Rules of Court).

B. Complaint under Article 6 § 1 of the Convention

1. Whether domestic remedies have been exhausted by Mr H.

61. Unlike Mr J., Mr H. did not raise the complaint here in issue in his appeal on points of law to the Supreme Court.

62. The purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail (see, among many other authorities, Akdivar and Others v. Turkey , 16 September 1996, §§ 66-67, Reports of Judgments and Decisions 1996 ‑ IV; Selmouni v. France [GC], no. 25803/94, §§ 74-77, ECHR 1999 ‑ V; Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003 ‑ VI; Salah Sheekh v. the Netherlands , no. 1948/04, § 121, 11 January 2007; and as recent examples, S.S. v. the United Kingdom ( dec. ), no. 9909/10, § 18, 18 February 2014, and Berkvens v. the Netherlands ( dec. ), no. 18485/14, § 21, 27 May 2014) .

63. The Court will have regard to the reasoning of the Advocate General in Mr J. ’ s case, which was adopted by the Supreme Court as its own in dismissing Mr J. ’ s corresponding complaint (see paragraphs 45 and 46 above). In the present case, the Court is satisfied that it would have served little purpose for Mr H. to raise it also. It will therefore proceed on the assumption that Mr H., like Mr J., has exhau sted all domestic remedies available to him.

2. Whether the complaint is manifestly ill-founded

64. Both applicants complained of the use made in the criminal proceedings against them of the statements which they had made in the asylum proceedings. They submitted that these statements had been extracted from them under coercion, though with a promise of confidentiality. They also complained of having been confronted with these statements during the criminal investigation. They relied on Article 6 § 1 of the Convention, which, in its relevant part, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

65 . The applicants relied in the first place on what they called the nemo tenetur principle, which the Court had recognised in Funke v. France (25 February 1993, Series A no. 256 ‑ A), Saunders v. the United Kingdom (17 December 1996, Reports 1996 ‑ VI) and Quinn v. Ireland (no. 36887/97, 21 December 2000), as a basic requirement of fairness enshrined in Article 6 § 1 of the Convention under its criminal head.

66. They submitted that they had not had any choice as to whether to make the statements in issue, which had later been used against them by the criminal courts. Not to make those statements would have meant risking denial of residence in the Netherlands and removal to their country of origin. Moreover, in confronting the applicants with their earlier pronouncements in the course of the criminal investigation the investigators had pressurised the applicants into repeating them, thus again incriminating themselves.

67. The Court notes at the outset that the Convention leaves States free to designate as a criminal offence an act or omission not constituting the normal exercise of a right protected by it (see the Engel and Others v. the Netherlands judgment of 8 June 1976, § 81, Series A no. 22). What is more, in certain cases a duty to prosecute actually derives from international law. From this it must follow that where an individual is reasonably suspected of having committed a criminal offence, the decision to prosecute is not for the Court to review under Article 6 of the Convention (see M.M. v. the Netherlands ( dec. ), no. 39339/98, 21 May 2002).

70. The Court finds, however, that the present case is unlike those cited in the preceding paragraph.

71. To begin with, both the applicants ’ State of nationality, Afghanistan, and the Netherlands are parties to the four Geneva Conventions of 1949 (see paragraph 49 above). Convention (IV) relative to the Protection of Civilian Persons in Time of War, in its Articles 146 and 147, requires States Parties to criminalise certain acts including torture; in its Article 146, it requires all States Parties either to extradite or themselves to prosecute individuals suspected of crimes defined as torture ( aut dedere aut judicare ) (see paragraph 51 above). The Netherlands has criminalised the acts in issue in sections 8 and 9 of the War Crimes Act and given itself jurisdiction to try the crimes in issue by enacting section 3(1) of that Act (see paragraph 47 above).

72. Similarly, both States are parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see paragraph 52 above). Article 4 of that treaty requires all States Parties to ensure that torture is criminalised in their domestic law. Articles 5, 7 and 8 of that treaty also enshrine the aut dedere aut judicare principle (see paragraph 53 above). The Netherlands has given itself the means to meet these obligations by enacting the Convention Against Torture (Implementation) Act (see paragraph 47 above).

73. Mr J. was recognised as a legitimate refugee within the meaning of the 1951 United Nations Convention relating to the Status of Refugees; this status was later withdrawn pursuant to Article 1F of that treaty. Mr H. was denied refugee status from the outset, also under the said Article 1F. Even so, neither applicant was deported or extradited; both were allowed to remain in the Netherlands and thus to enjoy the protection of the Netherlands State de facto .

74. It is clear, therefore, that it was not merely the right, but the bounden duty of the Netherlands to prosecute the applicants for any acts of torture which they might have committed elsewhere. This brings the Court to the use made in the criminal proceedings of the statements made by the applicants in the asylum proceedings.

75. The Court notes that the applicants entered the Netherlands of their own accord, asking for its protection. For their entitlement to protection – in the form of safe residence on Netherlands territory (Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees; see paragraph 55 above) – to be recognised, they were required to satisfy the Netherlands Government that their stated fear of persecution was well-founded. Since they bore the burden of proof, the Court finds nothing incongruous in the Government ’ s demanding the full truth from them. The suggestion that the applicants ’ statements to the immigration authorities were extracted under coercion is therefore baseless.

76. The applicants submitted in the second place that they had been required during the asylum proceedings to tell the whole truth, but had not been warned that any statement they might make might be forwarded to the public prosecutor with a view to initiating a criminal investigation and a prosecution.

77. The subordinate Government body charged with processing the applicants ’ asylum claims, the Immigration and Naturalisation Service, promised the applicants that their statements would be treated as confidential. The Court finds this natural. Indeed, it is difficult to imagine an asylum system functioning properly if asylum-seekers are not given the assurance that their statements will not come to the knowledge of the very entities or persons from whom they need to be protected.

78. Conversely, the Court considers that a practice of confidentiality appropriate to the processing of asylum requests should not be allowed to shield the guilty from condign punishment. Consequently, the Court cannot find that once these statements were in the possession of the Government the Deputy Minister of Justice was precluded by Article 6 of the Convention from transferring them to the public prosecution service, another subordinate Government body, to be used by it within its area of competence.

79. Finally, the applicants complained of having been confronted during the criminal investigation with the statements which they had made to the Immigration and Naturalisation Service.

80. The fact that the applicants were confronted during the criminal investigation with the statements which they had made during the asylum proceedings has no bearing on the fairness of the criminal proceedings. The Court points out that the applicants were heard under caution and enjoyed the right to remain silent (see paragraphs 20 and 23 above). Moreover, neither applicant ever admitted torture, or any other crimes, either during the asylum proceedings or during the criminal proceedings; it is not, therefore, the case that they were induced to make a confession that was afterwards used to ground their conviction (compare Gäfgen v. Germany [GC], no. 22978/05, § 187, ECHR 2010).

81. It follows from the above that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Other complaints

82. The applicants complained that the use made by the public prosecution service of the file compiled for the asylum proceedings violated their right to respect for their private life in that it was neither “prescribed by law” nor “necessary in a democratic society”. They relied on Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

83 . The applicant Mr H. complained in addition of the use against him of evidence given by the witness A.G.T., whom the defence had allegedly been unable to cross-examine. He relied on Article 6 § 3 (d) of the Convention, which provides as follows:

“Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

84. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

85. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications; and

Declares the applications inadmissible.

             Stephen Phillips Josep Casadevall Registrar President