THIRD SECTION

DECISION

Application no . 42331/05 A.A.Q. against the Netherlands

The European Court of Human Rights ( Third Section ), sitting on 30 June 2015 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Kristina Pardalos , Johannes Silvis , Valeriu Griţco , Iulia Antoanella Motoc , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 24 November 2005 ,

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

Having deliberated, decides as follows:

THE FACTS

1. Th e applicant, Mr A.A.Q. , is an Afghan national, who was born in 1956 and is currently staying in Germany . The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms J.A. Younge , a lawyer practising in Amsterdam .

2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Proceedings on asylum application

4. On 5 February 1998, the applicant entered the Netherlands where he applied for asylum. On 7 February 1998, the applicant was interviewed about his identity, nationality and travel itinerary. He stated, inter alia , that he hailed from Kabul and that he had travelled to the Nether lands via Pakistan and Belgium.

5. On 4 June 1998 and 3 May 1999, the applicant was interviewed about his reasons for seeking asylum ( nader gehoor ). He stated that he had made a career in the Afghan army from 1984 to 1994, during which period the country had been ruled by the Communist People ’ s Democratic Party of Afghanistan (“PDPA”). He had joined the PDPA ’ s youth organisation at the age of 16 or 17 and become a full member in 1979. Having studied car mechanics in Afghanistan and graduated in 1978, the applicant had taken up a six-month internship at the Engineering Directorate of a Ministry in order to avoid military service. On this basis, he had been transferred, for a job, to the President ’ s Bureau where he had been assessed with a view to possibly offering him a higher education in the Soviet Union. Having passed that selection, the applicant had been sent to one of the Soviet republics from March 1980 until March 1984 to study rocket science. Later, the applicant had also taken a nine-month political course in the army, in the framework of continued education as an officer.

6. From 1985 to around 1987 and from 1990 to 1992, the applicant had been deputy of the Political Affairs Division in one of the Artillery Brigades of the Ministry of Defence; during the first period in a maintenance company and during the second period in one of the battalions. In the latter function he had been the superior of three deputies of the Political Affairs Division as well as Deputy Commander of the battalion. From 1987 to 1990, the applicant had also held the position of president of the (political) Officers ’ Club.

7. The applicant had been promoted several times and his last held rank had been that of major. The applicant indicated that his tasks as deputy of the Political Affairs Division had involved, inter alia , the creation and dissemination of propaganda and the teaching of politics to soldiers.

8. On 6 March 1994, after the Mujahedeen had come to power , the applicant had left Kabul for Mazar-e-Sharif because he had no longer felt safe. Many of his friends had been arrested by the Mujahedeen. On the way to Mazar-e-Sharif, the bus in which he had been travelling had been stopped at a checkpoint. The applicant had been arrested by the Mujahedeen and kept in prison in Kabul for six months, during which period he had been interrogated about his role in the coup attempt and tortured. After that, the Mujahedeen had sent him to the war front to dig trenc hes and load grenade launchers.

9. On 27 or 28 September 1996, he had escaped from the prison in which he was kept by simply walking away when the prison guards had abandoned the prison in the wake of the capture of Kabul by the Taliban. He had then gone to his home village, where he had gone into hiding at his father ’ s house and where he had remained until his departure from Afghanistan on 26 December 1997. During that time, his father had been ha ssled by the Taliban about the family ’ s involvement with the PDPA (the applicant ’ s entire family had been PDPA members). The applicant submitted that he feared persecution from the side of the Mujahedeen and later, after 1996, the Taliban.

10. The applicant ’ s wife, born in 1958, and their eight children – who were born between 1980 and 1993 – as well as a number of members of the applicant ’ s family-in-law have all, at different points in time, been granted residence rights in the Netherlands. His eldest son had fled from Afghanistan via Pakistan to the Netherlands in 1993 together with the applicant ’ s mother-in-law and a number of the applicant ’ s wife ’ s brothers. This son, who was granted a residence permit in the Netherlands for compelling humanitarian reasons on the basis of the then general situation in Afghanistan, has since obtained Netherlands nationality. The applicant ’ s wife and four of the children fled from Afghanistan via Pakistan, Iran and Russia to the Netherlands, where on an unspecified date they were granted residence permits under the policy rules on extended family reunion ( verruimde gezinshereniging ). The remaining three children were also granted residence permits. On unspecified dates, the applicant ’ s oldest four children obtained Dutch nationality, retaining their Afghan nationality. The applicant ’ s spouse currently holds a residence permit for continued residence stay ( voortgezet verblijf ).

11. The Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant ’ s asylum application on 13 February 2001. Having noted three official country reports ( ambtsberichten ) on the general political and human rights situation in Afghanistan drawn up by the Netherlands Ministry of Foreign Affairs ( Ministerie van Buitenlandse Zaken ) in 1998, 1999 and 2000, the Deputy Minister found, in the relevant part, that the situation in Afghanistan at that moment was not such as to qualify all asylum seekers from that country for asylum and that, therefore, the applicant had to demonstrate that he had a personal and well-founded fear of persecution in Afghanistan.

12. The Deputy Minister considered that the grounds adduced by the applicant – amounting in essence to him being searched for by the Taliban and/or Mujahedeen due to his past function in the army – did not provide any basis for assuming that the applicant would have to fear persecution upon his return to Afghanistan. The Deputy Minister held in this regard that the applicant had not established that the Taliban were aware of his past activities, that he had ever been in contact with the Taliban or that there would be any other reasons relating to his past activities that would attract the Taliban ’ s negative attention. According to the Deputy Minister, the applicant ’ s claims were of a general and speculative nature.

13. Furthermore, the Deputy Minister considered that the applicant had not, either as an army officer during communist rule, or as a member of the PDPA, held a political post at a level at which he would have exercised a decisive influence on policy. According to the aforementioned official country reports, the Taliban were in general not interested in former communists who had been active at that level only. Moreover, rather than leave Afghanistan immediately after his escape from detention, the applicant had chosen to remain for an additional year in an area that was already under Taliban control at that time. The Deputy Minister considered implausible that a person who allegedly feared persecution by the authorities would go into hiding with somebody who himself was experiencing regular problems with those same authorities. This also applied to the applicant ’ s claim that he feared persecution by the Taliban as a result of the problems he allegedly had with the Mujahedeen. As the power base of this latter movement had in the meantime significantly decreased, the Deputy Minister held that the applicant should be able simply to evade any problems he might expect to experience from that side. In respect of the applicant ’ s reliance on Article 3 of the Convention, the Deputy Minister found that his account provided insufficient indications to assume that he, if returned to his country of origin, would run a real risk of being subjected to treatment in breach of that provision.

14. On 9 April 2001 the applicant lodged an objection ( bezwaar ) against this decision with the Deputy Minister.

15. On 17 September 2001, the applicant was informed that his case file had been transmitted to the 1F Unit (see paragraph 47 below) of the Immigration and Naturalisation Service ( Immigratie- en Naturalisatiedienst ; “IND”) as his asylum account, in particular his professional activities as a career military, gave reasonable cause to suspect that Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 (“the 1951 Refugee Convention”) might apply to his case.

16. The applicant ’ s asylum application was re-examined in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Af fairs on “Security Services in c ommunist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“ Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD ”) and concerning in particular the question whether and, if so, which former employees of those services should be regarded as implicated in human rights violations. According to this official report, Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist r egime for the military Khadimat ‑ e Atal ’ at-e Dowlati (“KhAD”) or, subsequently, the Waza rat-e Amaniat-e Dowlati (“WAD”) .

17. On 5 September 2003, an additional interview was held with the applicant on the applicability of Article 1F of the 1951 Refugee Convention to his case.

18. On 1 December 2003, the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ; the successor to the Deputy Minister of Justice) dismissed the applicant ’ s objection. She found , inter alia , that the applicant constituted a danger to public order ( openbare orde ), as serious reasons had been found for believing that he had committed crimes referred to in Article 1F of the 1951 Refugee Convention. Although the Minister attached credence to the applicant ’ s statements in terms of his positions and career within the Afghan army, the applicant ’ s description of his tasks was deemed to be inaccurate. Further, on the basis of a person-specific official report (individueel ambtsbericht ) issued by the Ministry of Foreign Affairs on 14 October 2003, the Minister found that, at the relevant time, the Political Affairs departments of the Afghan army consisted solely of highly loyal and skilled professional soldiers, who wielded a large amount of influence within the organisation and who, as informants, worked closely together with the KhAD. They were thus inextricably connected to the frequent arrests, disappearances and/or executions of disloyal members of the army by the KhAD. The Minister further emphasised the widely known cruel character of the KhAD, the grave crimes committed by its officers and the “climate of terror” it had spread throughout the entire Afghan society, including the army. In this regard the Minister relied on the general official report of 29 February 2000.

19. Having established, on the basis of elaborate argumentation and documentation, that those involved in the KhAD and the Political Affairs Divisions of the Afghan army were likely to fall w ithin the scope of Article 1F of the Refugee Convention, the Minister proceeded to an analysis of the applicant ’ s individual responsibility under that Convention on the basis of the prescribed and so-called “personal and knowing participation test” and eventually rejected the applicant ’ s objection by holding Article 1F against him. The Minister indicated that consequently, pursuant to the provisions of sections 3.107 and 3.77 of the Aliens Decree ( Vreemdelingenbesluit ), the applicant was ineligible for a residence permit for asylum or any other ground.

20. In so far as the applicant relied on Article 3 of the Convention, the Minister held that it was for the applicant to show that there were concrete reasons, connected to personal facts and circumstances, justifying the conclusion that he would run a real risk of treatment contrary to that provision if returned to Afghanistan. The Minister found that the applicant had failed to substantiate such grounds, since he had neither indicated that anyone would be actively looking for him in Afghanistan nor furnished any reasons due to which he would draw the local aut horities ’ particular attention.

21. Lastly, and as regards Article 8 of the Convention as invoked by the applicant, the Minister held that, although there was family life between the applicant and his relatives residing in the Netherlands, the State ’ s interest in expulsion of individuals who endanger public order prevailed over the personal interests of the applicant.

22. The applicant ’ s appeal against this decision was rejected by judgment of 17 May 2005 by the Regional Court ( rechtbank ) of The Hague, sitting in Alkmaar. Pursuant to section 8:79 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), this judgment was sent to the applicant on 30 May 2005.

23. In the appeal proceedings before the Regional Court, the applicant had disputed the accuracy of the official reports, drawn up by the Ministry of Foreign Affairs, which the Minister had relied on in his case, and he argued that the information contained in those reports did not apply to him. At the request of the Minister of Forei gn Affairs and with the parties ’ consent, the Regional Court was granted access to the materials underlying the person-specific official report of 14 October 2003 without these materials being disclosed to the applicant. It found that the report provided information in an unbiased, objective and transparent manner, and accepted that the conclusions drawn in the official report were sufficiently supported by the underlying materials. The applicant ’ s unsubstantiated claim that the information contained in the person-specific official report did not necessarily apply to each person who had worked at the Political Affairs department was insufficient for the Regional Court to doubt the report ’ s accuracy. The Regional Court further found that it had not appeared that there were any concrete indications to doubt either the person-specific official report or the offic ial report of 29 February 2000.

24. The Regional Court held that the Minister could reasonably have established the facts relating to the applicant ’ s activities for the Political Affairs Division of the Afghan Ministry of Defence in the way that she had done. In addition, she could reasonably have dismissed as implausible the applicant ’ s claim that he had not been aware of human rights abuses committed by KhAD/WAD until he came to the Netherlands, given that the KhAD/WAD ’ s criminal character was generally known in Afghanistan at the time, according to the offic ial report of 29 February 2000.

25. As regards the applicant ’ s reliance on Article 3 of the Convention, the Regional Court concurred with the Minister on all points that the applicant had failed to substantiate the existence of a real risk of treatment contrary to that provision. As to Article 8 of the Convention , the Regional Court held that this provision could not play a role in asylum proceedings, notwithstanding the fact that the Minister had examined the applican t ’ s arguments in this context.

26. The applicant ’ s further appeal to the Administrative Jurisdiction Division of the Council of the State ( Afdeling Bestuursrechtspraak van de Raad van State ) was declared inadmissible on 24 October 2005. The Division found that it had no jurisdiction as, by virtue of section 120 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), the Division only had jurisdiction over decisions taken after the en try into force of that Act on 1 April 2001 whereas the initial decision by the Deputy Minister had been taken on 21 March 2001. No further appeal lay against this decision.

2. Proceedings on request for residence permit based on family life

27. On 12 August 2008, the applicant applied for a residence permit for the purpose of exercise of family life within the meaning of Article 8 of the Convention. This application was rejected on 18 December 2009 by the Deputy Minister of Justice; the successor to the Minister for Immigration and Integration. The applicant ’ s objection against this decision was rejected on 17 June 2011 by the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie, Integratie en Asiel ; the successor to t he Deputy Minister of Justice).

28. The applicant ’ s appeal against the decision of 17 June 2011 was rejected on 2 March 2012 by the Regional Court of The Hague, sitting in Amsterdam. It noted that it appeared from the decision of 1 December 2003 that the applicant was associated with extrajudicial arrests and extrajudicial detention of persons, the torture of persons, extrajudicial execution of persons, and the commission of assassinations, because he – on account of his work for the Political Affairs Division – had facilitated the activities of KhAD/WAD. It further noted that this decision had become final.

29. As regards Article 8, the Regional Court held:

“The court considers that, according to settled case law of the European Court of Human Rights, regardless of whether there is a positive or negative obligation, a fair balance must be struck between, on the one hand, the interests of the alien and, on the other, Netherlands general interest. In this balancing exercise, the [Minister] enjoys a certain margin of appreciation. The court notes that, in his assessment, the [Minister] has taken into account the criteria formulated in the judgments of the European Court of Human Rights of 2 August 2001 in the case of Boultif and 18 October 2006 in the case of Üner . The court accepts that it was reasonable for the [Minister], in striking this balance in the framework of Article 8, to find against the [applicant]. To this end, the court considers that it was not unjust that the [Minister] attached weight to the suspicion of the [applicant ’ s] involvement in human rights violations. The court does not follow the [applicant ’ s] argument that, in assessing whether he should be granted a residence permit on the basis of Article 8, insufficient factual research has been made into his involvement in the commission of crimes referred to in Article 1F of the Refugee Convention. ... The court sees no ground for holding that only crimes found proven according to criminal law standards may be held against [the applicant]. The [Minister could also hold against the [applicant] that [the latter] has accepted a deal ( transactie ) proposed by a public prosecutor in order to avoid the lodging of formal criminal proceedings for shoplifting. This is not altered by the fact, as confirmed by the [Minister] at the hearing, that this has a lighter weight. It further has been taken into account in the balancing exercise that the [applicant] has resided in the Netherlands for 13 years, but he has never had lawful residence based on a valid residence permit and his residence status has always been precarious. Although the [applicant ’ s] spouse is living here and holds a valid residence permit, no objective obstacle has appeared to exercise the family life with her elsewhere. His spouse holds Afghan nationality. The argument that his spouse cannot return to Afghanistan for asylum-related reasons but that these reasons have never been examined because she had already been granted a regular [i.e. not asylum-based] residence permit does not succeed. To the extent that reference has been made to the [applicant ’ s] asylum account, it has been established in the proceedings on his asylum request that he has not demonstrated that he has to fear treatment in breach of Article 3 nor that for any reason or other he will have to expect the particular attention of the authorities upon his return. To the extent that the [applicant ’ s] spouse claims to have independent, separate asylum-related problems, this has not been substantiated. The report of 9 August 2011 by M.D., psychologist, concerning the spouse ’ s mental health state is insufficient for finding that there is an objective obstacle. It is true that it appears that she suffers from depression, a dissociative and a post-traumatic stress disorder, but it does not appear that for this reason she would be unable to go to Afghanistan with the [applicant]. ... Noting the fact that the [applicant] and his wife married in the period during which the [applicant] worked for the Political Affairs Division, the [Minister] has justly not found it plausible that his wife was unaware of the facts held against the [applicant] in the framework of Article 1F [of the 1951 Refugee Convention].”

As regards asylum-related arguments advanced by the appl icant, the Regional Court held:

“... the Court is of the opinion that the [applicant ’ s] argument fails. Noting the strict separation between asylum-related and regular [i.e. non-asylum-related applications for a residence permit] that follows from the system of the Aliens Act 2000, the Minister has justly referred to [the possibility of] filing an asylum application.”

30. On 4 March 2013, the Administrative Jurisdiction Division rejected the applicant ’ s further appeal on summary grounds, holding:

“What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling. Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.”

No further appeal lay against this ruling.

3. The applicant ’ s removal from the Netherlands

31. On 6 August 2013, the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie ; the successor to the Minister for Immigration, Integration and Asylum Policy) informed the applicant that – it having been noted that it had been erroneously assumed in the proceedings having ended on 4 March 2013 that there was an obstacle for the applicant ’ s expulsion in the form of an interim measure issued under Rule 39 of the Rules of Court by the European Court of Human Rights – he intended to proceed with the applicant ’ s removal from the Netherlands.

32. According to a letter dated 7 August 2013 and sent to the applicant ’ s representative by a psychologist and a psychiatrist working for the mental health care organisation providing treatment to the applicant ’ s daughter A., the latter displayed psychotic features, possibly in the context of a developing schizophrenia or post-traumatic stress disorder. She was visited weekly in her home for treatment. The authors of this letter stated that they were unable to in dicate whether her mental health problems were connected to or affected by the applicant ’ s possible removal from the Netherlands, but considered it understandable that this removal would cause tensions within the family.

33. On 7 August 2013, the applicant requested the Court to indicate to the Netherlands Government, under Rule 39 of the Rules of Court, to stay his expulsion to Afghanistan. On 12 August 2013, the acting President of the Third Section, to which the case had been allocated (Rule 52 § 1 of the Rules of Court), decided to adjourn the examination of the request as no practical steps aimed at the applicant ’ s effective removal had yet been taken by the Netherlands authorities.

34. On 7 October 2013, the Departure and Repatriation Service ( Dienst Terugkeer en Vertrek ) of the Ministry of Security and Justice informed the applicant that his removal to Afghan istan had been scheduled for 20 October 2013.

35. On the same day, the applicant requested the Court to determine his request to apply Rule 39 of the Rules of Court. On 15 October 2013, the Court decided not to indicate the interim measure sought by the applican t and informed him accordingly.

36. In her submissions of 31 March 2015 and 1 April 2015 to the Court, the applicant ’ s lawyer informed the Court that on 12 August 2013 the applicant had moved from the Netherlands to Germany where he had applied for asylum. This request was still pending and the applicant had been granted a provisional residence permit ( Aufenthaltsgestattung ), valid until 6 May 2015 with the possibility of further prolongation, pending the decision on his asylum request. His spouse had visited him in Germany.

B. Relevant domestic law and practice

1. Proceedings for obtaining a residence permit

38. Aliens are eligible for admission only on the basis of directly applicable international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a huma nitarian nature (section 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention or risk of being subjected in the country of origin to treatment in breach of Article 3 of the Convention constitute an obligation under an international agreement.

39. Under section 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia , he or she is a refugee within the meaning of the 1951 Refugee Convention, or he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.

40. If the exclusion clause under Article 1F of the 1951 Refugee Convention (see paragraphs 45-49 below) is held against an asylum seeker, the alien concerned loses any protection which might have been available under th at Convention and, consequently, becomes ineligible for a residence permit for asylum under section 29 of the Aliens Act 2000 (section 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000).

41. The admission policy for family reunification ( gezinshereniging ) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a person lawfully residing in the Netherlands is, in principle, eligible for admission, if certain further conditions relating to matters, such as, public policy and means of subsistence are met.

42. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision ( marginale toetsing ). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure ( voorlopige voorziening ) pending the outcome of the appeal proceedings.

43. In a ruling of 3 December 2008 ( Landelijk Jurisprudentie Nummer [National Jurisprudence Number] BG5955), the Administrative Jurisdiction Division held that, apart from judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings, in principle no further remedy lay against a decision to reject an alien ’ s request for admission to the Netherlands, as the lawfulness of the consequences of that decision had already been judicially determined in the administrative appeal proceedings. It nevertheless accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal ( daadwerkelijke uitzettingshandeling ), an objection ( bezwaar ) and subsequent appeal ( beroep ) may be filed against an act aimed at effective removal. Under the terms of sectio n 72 § 3 of the Aliens Act 2000 , such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative law appeal proceedings.

44. In accordance with Article 5 of Regulation (EC) No . 562/2006 of the E uropean Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) and Article 21 of the Convention Implementing the Schengen Agreement of 14 June 1985 (CISA) a third country national holding a valid residence permit issued by one of the states of the Schengen area may – on the basis of that permit – stay for a maximum period of ninety days per six months in the territory of another country within the Schengen area.

2. Article 1F of the 1951 Refugee Convention in Dutch asylum policy

45. Article 1F of the 1951 Refugee Convention reads:

“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.”

46. On 4 September 2003 the U nited Nations High Commissioner for Refugees (U NHCR ) issued the “Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees ” . They superseded “The Exclusion Clauses: Guidelines on their Application ” (UNHCR, 1 December 1996) and “ Note on the Exclusion Clauses ” (UNHCR, 30 May 1997) and are intended to provide interpretative legal guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field. These guidelines state, inter alia , that w h ere the main asylum applicant is excluded from refugee status, his/her dependants will need to establish their own grounds for refugee status. If the latter are recognised as refugees, the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee (paragraph 29).

48. Following a so-called “1F investigation”, it will be decided whether or not to hold the exclusion clause under Article 1F against the person concerned. Where Article 1F is applied, the asylum request is rejected and the person concerned is obliged to leave the Netherlands. This decision, taken in the context of asylum proceedings, may be challenged in administrative law appea l proceedings (see § 38 above).

3. General official report by the Netherlands Ministry of Foreign Affairs c oncerning security services in c ommunist Afghanistan

51. The report further states that detainees and prisoners were systematically tortured in the interrogation and detention centres of the KhAD and the WAD, that their agents were very inventive in choosing their torture methods and that thousands of suspects were tortured to death by KhAD and WAD agents. If the KhAD or WAD thought that a suspect was guilty, they could kill him or her without further investigation or judicial intervention. According to the report, i t is estimated that during the c ommunist regime in Afghanistan 200,000 citizens were arrested and detained by the Afghan security services (AGSA, KAM, KhAD and WAD), whereby about 50,000 Afghans lost their lives, mostly after being tortured or sentenced to death.

COMPLAINTS

53. The applicant complained under Articles 2 and 3 of the Convention that he runs a real risk of being tortured and/or murdered if expelled to Afghanistan due to his communist political convictions and past high-ranking position in the Afghan army under the rule of the People ’ s Democratic Party of Afghanistan.

54. The applicant further complained under Article 8 of the Convention that due to the refusal by the Dutch authorities to grant him a residence permi t he is being precluded from exercising fami ly life with his wife and children who could not be expected to return to Afghanistan, either because they feared persecution or because they had become rooted in Dutch society.

55. The applicant lastly complained under Article 13 of the Convention that he did not have an effective remedy for his complaint s under Article 3 and Article 8 of the Convention.

THE LAW

56. The applicant complained that his removal to Afghanistan would violate his rights under Articles 2 and 3 of the Convention. Article 2 of the Convention provides that:

“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.”

57. Article 3 of the Convention provides that:

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

58. The Government contested th ese claims .

59. The Court notes that in August 2013, shortly before his scheduled removal to Afghanistan, the applicant moved to Germany where he filed an asylum request which is currently still pending. The Court further notes that, pending the determination of this asylum request, he has been granted a provisional residence permit. Consequently, the applicant is currently not at risk of being removed to Afghanistan. The Court is therefore of the opinion that the applicant cannot, at least not for the time being, be regarded as a victim for the purposes of Article 34 of the Convention.

60. Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

61. The applicant further complained that the refusal to grant him a Netherlands residence permit was contrary to his right to respect for his family life within the meaning of Article 8 of the Convention with his wife and children in the Netherlands . Article 8 reads:

“1. Everyone has the right to respect for his . family life ... .

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.”

62. The Government disagreed and submitted that this complaint was unfounded .

63. It is not in dispute that the applicant ’ s relationship with his spouse constituted “family life” for the purposes of Article 8 and that the refusal to admit him to the Netherl ands affected that family life.

65. On the basis of the content of the case file, the Court cannot find that, apart from the normal emotional ties, there are further elements of dependency between the applicant and his adult children bringing their relationship in the protective sphere of Article 8 of the Convention.

66. As to the applicant ’ s family life with his spouse, the Court reiterates that a State is entitled, as a matter of well ‑ established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there and that Article 8 does not entail a general obligation for a State to respect immigrants ’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State ’ s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest, including that State ’ s obligations under the 1951 Refugee Convention. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them or in a third country, and whether there are factors of immigration control or considerations of public order weighing in favour of exclusion (see K. v. the Netherlands (dec.), no. 33403/11, § 42 with further references, 25 September 2012).

67. As the applicant, unlike his spouse and their children, was never granted a residence permit in the Netherlands, the Court considers that the present case is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention ( see Jeunesse v. the Netherlands ([GC], no. 12738/10, §§ 10 2 -10 5 , 3 October 2014). T he boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Jeunesse , cited above, § 106).

68. The Court must therefore examine whether, in refusing to grant the applicant a residence permit, the Netherlands authorities can be said to have struck a fair balance between the applicant ’ s personal interests on the one hand, and on the other hand, their own interest in excluding aliens suspected of crimes referred to in Article 1F of the 1951 Refugee Convention.

69. The Court notes that in December 1997 the applicant left Afghanistan and in February 1998 arrived in the Netherlands where he was reunited with his wife, who had been granted a Netherlands residence permit for family reunion with their oldest son already residing in the Netherlands since 1993, and with their eight children who had all been granted a Netherlands residence permit.

70. The applicant applied for asylum and in this context stated that he had worked for the Political Affairs Division of the Afghan army during the communist period and that his last held rank had been that of major. On the basis of his asylum account, the general official report of 29 February 2000 (see paragraphs 50-52 above) and the person-specific official report of 14 October 2003 (see paragraphs 18 and 23 above), the Netherlands authorities decided to deny him asylum by holding the exclusion clause of Article 1F of the 1951 Refugee Convention against him. The applicant unsuccessfully appealed this decision before the domestic administrative and judicial authorities.

71. Taking into account the seriousness of the crimes and acts referred to in Article 1F , the Court finds that the public interest served by the application of this exclusion clause weighs very heavily in the balance when assessing the fair ness of the balance struck under Article 8 of the Convention. In this context, the Court has also had regard to the UNHCR guidelines on the application of the exclusion clauses of the 1951 Refugee Convention in respect of the right to family unity of a person excluded from protection pursuant to Article 1F (see paragraph 46 above) , as well as to the finding of the Regional Court in its judgment of 2 March 2012 that it was not plausible that the applicant ’ s wife had been una ware of the facts held against the applicant in the framework of Article 1F of the 1951 Refugee Convention (see paragraph 29 above). The Court finds that also th ese are relevant factor s which must be taken into account in the balancing exercise under Article 8.

72. It remains, however, to be examined whether it is possible for the applicant to exercise his family life with his wife outside the Netherland s. On this point, the Court considers that it is not necessary to examine whether it can be expected from the applicant ’ s wife to return with the applicant to Afghanistan as the applicant does not, at least not for the time being, risk removal to Afghanistan. The Court further notes that, under the Schengen Borders Code and the CISA, his wife is allowed to stay in Germany for a maximum period of ninety days per six months (see paragraph 44 above) , and that she has actually been staying with the applicant in Germany.

73. Having regard to the above considerations and the particular features of the instant case , the Court finds that , in denying the applicant admission to the Netherlands , the Netherlands authorities have not failed to strike a fair balance between the competing interests where it concerns respect for the applicant ’ s family life within the meaning of Article 8 of the Convention . It follows from the above that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

74. The applicant lastly complained under Article 13 of the Convention that he did not have an effective remedy in respect of his complaint s under Articles 3 and 8 of the Convention.

75. Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

76. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they are secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with an “arguable complaint” under the Convention and to grant appropriate relief. The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority. Nevertheless, its powers and the procedural guarantees which it affords are relevant in determining whether the remedy before it is effective. The expression “effective remedy” used in Article 13 cannot be interpreted as a remedy that is bound to succeed; it simply means an accessible remedy before an authority competent to examine the merits of a complaint (see, most recently, Koceniak v. Poland (dec.) no. 1733/06, § 72 with further references, 17 June 2014).

77. Even assuming that the applicant would have an arguable claim for the purposes of Article 13, he w as able to have the negative decision on his asylum request and the negative decision on his request for a family-life-based residence permit reviewed by the Regional Court of The Hague and subsequently the Administrative Jurisdiction Division, albeit unsuccessfully. The Court further notes that, both in the proceedings before the Regional Court and before the Administrative Jurisdiction Division, the applicant was given ample opportunity to state his case, to challenge the submissions by the adversary party and to submit whatever he found relevant for the outcome. The Court last notes that the applicant ’ s arguments under the Convention were considered and determined in the proceedings at issue .

78. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 23 July 2015 .

Marialena Tsirli Josep Casadevall Deputy Registrar President