Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25894/94

by Shammsuddin BAHADDAR

against the Netherlands

The European Commission of Human Rights sitting in private on

22 May 1995, the following members being present:

MM. C. A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 December 1994

by Shammsuddin BAHADDAR against the Netherlands and registered on

9 December 1994 under file No. 25894/94;

Having regard to:

- the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 February 1995 and the observations in reply submitted by the

applicant on 7 and 10 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

currently residing in the Netherlands. Before the Commission he is

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

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

summarised as follows.

A. The particular circumstances of the case

The applicant is a Buddhist and belongs to the Chakma tribe in

the Chittagong Hill Tracts region of Bangladesh, which is the most

sparsely populated area of that country and originally inhabited by

tribal groups of which the Chakma is the largest. Subsequent

Bangladeshi Governments have encouraged large numbers of Bangladeshi

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 economical development of the area but

formed part of the Governments' policy against armed resistance at the

same time.

The applicant's parents were killed by the army when he was eight

years old and he was then adopted by a Muslim family. From an early age

he was involved with the illegal organisation "Shanti Bahini", the

armed wing of the People's Solidarity Association which strives for

regional autonomy of the Chittagong Hill Tracts. His activities for the

Shanti Bahini consisted of informing them of military movements of

Government forces, mapping army routes, and the collection of funds,

in particular through the extortion of an immigrant from 1984 until

1990. He was 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. To cover up his illegal

activities even further, he joined the legal Bangladeshi National Party

(BNP) in 1987.

In April 1990 the applicant took part in a demonstration

organised by the BNP. Following the dispersal of the demonstration by

police, the applicant went to a friend's house from where he telephoned

his father who 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 and had come upon papers,

which the applicant had drawn up for the Shanti Bahini, containing

information about movements of Government forces. The applicant

suspects that one of his neighbours, a so-called counsellor who

performs supervisory duties in the district, had recognised him during

the demonstration and reported him to the police.

The applicant prepared to leave his country when he learned,

after a few days, that charges had been brought against him and that

he was accused of carrying out activities for an illegal organisation.

The applicant applied for asylum and 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. His requests were refused on 16 July 1991 by

the Deputy Minister of Justice (Staatssecretaris van Justitie), who

also denied suspensive effect to the applicant's subsequent request for

a review (herziening) of his decision. In order to obtain an injunction

on his expulsion pending the review proceedings, the applicant

instigated summary proceedings (kort geding) before the President of

the Regional Court (Arrondissementsrechtbank) of The Hague presiding

at the Regional Court of 's-Hertogenbosch.

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. The President also took into account a

letter from Amnesty International of 24 October 1991, which states

that, if it is true that the applicant provided the Shanti Bahini with

information about military operations and the military are aware of

this, he risks detention and torture upon his return to Bangladesh.

The applicant was heard by the Advisory Committee on Alien

Affairs (Adviescommissie voor Vreemdelingenzaken) on 21 December 1992.

In accordance with this Committee's advice, the Deputy Minister of

Justice rejected the request for a review on 26 March 1993. The Deputy

Minister held, inter alia, that it appeared from an investigation

carried out by the Netherlands Ministry of Foreign Affairs that the

declaration submitted by the applicant and purportedly issued by the

Shanti Bahini was not authentic, and that the criminal charge against

him was brought by a private person and concerned only the civil

offence of extortion.

On 31 March 1993 the applicant filed an appeal against the Deputy

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

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

mentioning that the grounds for the appeal would be submitted as soon

as possible. As this appeal was denied suspensive effect, the applicant

instigated summary proceedings before the President of the Regional

Court of The Hague presiding at the Regional Court of Amsterdam.

In these summary proceedings the applicant argued, inter alia,

that the declaration of the 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.

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

the 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 the Shanti Bahini through

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

struggle of the 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

interests of the Bangladeshi authorities in the applicant have 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-grounded

fear of persecution could not be excluded.

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.

On 7 March 1994, the President 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 Judicial Division on 11 March 1994.

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 Deputy Minister of 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.

The Judicial 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.

Neither the Judicial Division nor its President in his decision

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

On 5 December 1994, the applicant filed new requests for asylum

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

the 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 Deputy Minister of Justice had not been

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

requests for asylum and a residence permit.

The Deputy Minister of 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.

Appeal proceedings against the decision of 12 January 1995 are

currently still pending but have no suspensive effect.

In support of his application the applicant has further submitted

copies of letters to his Dutch lawyer from his lawyer in Bangladesh,

Mr J.B. Chakma, from which it appears that there is a case pending

against the applicant in the sub-district Court of Rangamati under

Section 384 of the Bangladesh Penal Code and that the applicant may be

sentenced to three years' imprisonment for extortion. Mr Chakma further

mentions 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.

Mr Chakma also explains that pursuant to Section 332 of the

Bengal Records Manual 1943, of which he encloses a copy, he cannot

obtain a copy of the warrant for the applicant's arrest, but he insists

that the life of the applicant is not safe in Bangladesh.

B. Relevant domestic law and practice

According to established case-law in the Netherlands, which has

also been incorporated in the Dutch Aliens Act, the President of a

Regional Court, when deciding on a request for an injunction on

expulsion pending appeal proceedings, has to decide whether there can

be no doubt between reasonably thinking people that the asylum seeker

is not a refugee ("dat er tussen redelijk denkende mensen geen twijfel

bestaat dat de betrokkene geen vluchteling is", Supreme Court, Mosa

judgment of 22 June 1984, NJ 1985, 82).

Section 72 para. 1 of the Act on the Council of State (Wet op de

Raad van State) requires that applications to the Judicial Division be

reasoned. In case of non-compliance with this provision, the President

of the Judicial Division sets a time limit for the rectification of

this omission pursuant to Section 74 para. 1 of the Act on the Council

of State. Para. 2 of Section 74 provides that the application of an

appellant who has not complied with the requirements of Section 72

para. 1 within the time limit fixed for this purpose may be declared

inadmissible.

When the President of the Judicial Division is of the opinion

that a case is manifestly ill-founded (kennelijk ongegrond) or when a

further examination does not appear to him to be necessary, he may give

an immediate decision in simplified proceedings pursuant to Section 105

para. 1 of the Act on the Council of State.

Section 106 of the Act on the Council of State provides for

interested parties to file an objection with the Judicial Division

against a decision taken by the President in simplified proceedings.

Upon the appellant's request, the Judicial Division has to grant a

public hearing. If the Judicial Division considers the objection well-

founded, the President's decision is annulled and the case will be

dealt with in ordinary proceedings.

Section 15b para. 1 (b) of the Aliens Act provides that a request

for asylum may be rejected as inadmissible when the applicant has

requested residence in the Netherlands before on similar grounds and

this request has been rejected in a final decision.

COMPLAINTS

The applicant complains that the Netherlands authorities, by

expelling him to Bangladesh, would expose him to a serious risk of

being killed or ill-treated since a warrant for his arrest has been

issued and the Bangladeshi authorities are aware of his activities for

the illegal organisation Shanti Bahini. The applicant invokes Articles

2 and 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 December 1994 and registered

on 9 December 1994.

The Commission decided on 9 December 1994 to apply Rule 36 of the

Commission's Rules of Procedure until the end of its next session and

the application was subsequently communicated to the Government,

inviting them to submit their observations on the admissibility and

merits of the application.

The application of Rule 36 was subsequently prolonged on 19

January, 2 March and 12 April 1995.

The Government's observations were submitted on 17 February 1995

and the applicant's observations in reply were submitted on 7 and

10 April 1995.

THE LAW

The applicant complains that his expulsion to Bangladesh amounts

to inhuman or degrading treatment contrary to Article 3 (Art. 3) of the

Convention, which reads:

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

treatment or punishment."

He also invokes Article 2 para. 1 (Art. 2-1) of the Convention,

which provides:

"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."

1. The Government argue that the applicant has not complied with the

requirement of exhaustion of domestic remedies imposed by Article 26

(Art. 26) of the Convention, since he has omitted to substantiate his

appeal before the Judicial Division of the Council of State in time.

They further allege that his requests of 5 December 1994 for asylum and

a residence permit did not contain any relevant new facts and that

these proceedings have therefore no bearing on the present complaint.

The applicant maintains that he has exhausted domestic remedies.

He refers to the appeal before the Judicial Division, which was

instigated within the time limit set for this purpose, and claims that

the allegation of the Deputy Minister of Justice that documents

submitted by the applicant were not authentic, could only be refuted

after having obtained further information from Bangladesh which was not

immediately available. The applicant further states that his complaints

before the Commission are also directed against the rejection by the

Dutch authorities of his second request for asylum.

The Commission notes in the first place that the applicant's

objection against the decision of the President of the Judicial

Division to declare his appeal inadmissible on the basis that the

grounds for the appeal had been submitted out of time, was rejected by

the Judicial Division.

The Commission recalls that it has previously held that, where

failure to respect procedural rules constitutes the reason for the

refusal of a remedy, the requirement as to the exhaustion of domestic

remedies cannot be considered to have been satisfied, unless special

circumstances exist which absolve the applicant from exhausting the

remedies at his disposal according to the correct procedures (cf. No.

10107/82, Dec. 12.7.84, D.R. 38 p. 90; No. 10636/83, Dec. 1.7.85,

D.R. 43 p. 171).

The Commission must, therefore, proceed to examine whether in the

present case such special circumstances exist.

In this respect the Commission observes that the authenticity of

a document submitted by the applicant in support of his claims for

asylum and allegedly issued by the Shanti Bahini was disputed between

the parties. The applicant subsequently obtained a second declaration

and some further documentary evidence, the authenticity of which does

not appear to be in dispute.

The Commission notes that the applicant's request for asylum has

not been examined by any Dutch authority in the light of the new

documentary evidence submitted by the applicant. The Judicial Division

and its President held that, as the applicant had failed to submit

grounds for his appeal in time, they could not consider the appeal on

its merits. Furthermore, the applicant's second request for asylum and

a residence permit was also refused without an examination of the

merits since it was held not to contain any relevant new facts.

It appears, however, that the President of the Hague Regional

Court, in his decision of 11 November 1993 on the applicant's request

for an interim measure, attached relevance to the new documentary

evidence when he held that the possibility that the applicant had a

well-grounded fear of persecution could not be excluded.

The Commission accepts, for the sake of efficiency and in order

to avoid abuse of administrative or judicial proceedings, the necessity

of legal provisions which entitle decision-making bodies to declare a

request or an appeal inadmissible when procedural rules have not been

complied with or when a second request is filed on the same grounds as

an earlier request which has already been decided on.

The Commission concludes, however, that the application should

not be declared inadmissible for non-exhaustion of domestic remedies,

since special circumstances exist which absolve the applicant from

exhausting these remedies according to the correct procedures.

2. As to the merits of the application, the Government contend that

the applicant has failed to demonstrate that the legal proceedings

instituted against him on the grounds of extortion were politically

motivated. They further allege that the applicant's activities for the

Shanti Bahini have never occasioned the authorities' interest in him

and that the applicant has made conflicting statements at various

stages of the procedure with regard to his membership of the Shanti

Bahini.

The applicant submits that in the legal proceedings instituted

against him he is accused of extortion for the benefit of the Shanti

Bahini, as was accepted by the President of the Regional Court in his

judgment of 11 November 1993. He further disputes that he has made

conflicting statements at any stage and refers to the judgment of 14

November 1991 of the President of the Regional Court, where his story

was found to be credible and consistent.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other grounds for declaring it inadmissible have been

established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

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BAHADDAR v. THE NETHERLANDS

BAHADDAR v. THE NETHERLANDS

LEXI