106

In this regard it is appropriate to begin by recalling the context in which the judgment of the Raad van State of 1995 was delivered and the decision of the Rechtbank made, and the exact content and significance of that judgment and of that decision, as they were defined by the Court in Sison, paragraphs 46 to 70: ‘46 The papers before the Court indicate that the applicant, who has Filipino nationality, has resided in the Netherlands since 1987. In September 1988, after the Philippine Government withdrew his passport, he applied for refugee status and a residence permit in the Netherlands on humanitarian grounds. That application was refused by decision of the State Secretary for Justice (“the State Secretary”) of 13 July 1990, on the basis of Article 1F of the Geneva Convention … 47 His request for a review of that decision having been impliedly rejected by the State Secretary, the applicant brought an action before the Raad van State (Netherlands Council of State) against that implied decision to reject. 48 By judgment of 17 December 1992 (“the judgment of the Raad van State of 1992”), the Raad van State annulled the implied decision to reject. It held essentially that the State Secretary had not demonstrated to the requisite legal standard which of the acts allegedly committed by the applicant had led him to conclude that the applicant fell within the scope of Article 1F of the Geneva Convention. The Raad van State stated in that regard that the documents supplied to it on a confidential basis by the State Secretary were not sufficiently clear on the point. Since the confidential nature of the documents in question meant that that lack of clarity could not be remedied by an inter partes hearing, the Raad van State held that the information contained in those documents, in so far as it was unclear, could not be construed in a manner which was unfavourable to the applicant. 49 By decision of 26 March 1993, the State Secretary again rejected the applicant’s request for a review of his decision of 13 July 1990. That decision to reject was taken primarily on the basis of Article 1F of the Geneva Convention and in the alternative on the basis of the second paragraph of Article 15 of the Vreemdelingenwet (Netherlands Law on Aliens), by reason of the overriding interests of the Netherlands State, that is to say the integrity and credibility of the Netherlands as a sovereign State, particularly with regard to its responsibilities towards other States. 50 In an action to challenge that [decision] brought by the applicant, the Raad van State annulled the State Secretary’s decision of 26 March 1993 by judgment of 21 February 1995 (“the judgment of the Raad van State of 1995”. 51 In that judgment, the Raad van State held that the State Secretary had reached his decision on the basis of the following factors: — a letter from the Binnenlandse Veiligheidsdienst (Netherlands internal security service, “the BVD”) of 3 March 1993, which stated, first, that the applicant held the post of chairman and was the head of the Communist Party of the Philippines (“the CPP”) and, second, that the military wing of the CPP, the NPA, was under the Central Committee of the CPP and, accordingly, the applicant; — the findings of the BVD, first, that the applicant was, in fact, the head of the NPA and, second, that the NPA — and thus the applicant — was responsible for a large number of terrorist acts in the Philippines. 52 The Raad van State noted the following examples of such terrorist acts, given by the State Secretary in his decision of 26 March 1993: — the murder of 40 inhabitants (mostly defenceless women and children) of the village of Digos, on the Island of Mindanao (Philippines) on 25 June 1989; — the shooting of 14 people, including six children, in the village of Dipalog (Philippines) in August 1989; — the execution of four inhabitants of the village of Del Monte (Philippines) on 16 October 1991. 53 The Raad van State also noted that the State Secretary had mentioned the purges carried out in 1985 in the CPP and the NPA, in the course of which it was estimated that 800 of their members were assassinated without any form of trial taking place. 54 Lastly, the Raad van State noted that, according to the State Secretary, the BVD had also determined that the CPP and the NPA maintained contacts with terrorist organisations throughout the world and that personal contacts between the applicant and representatives of those organisations had also been observed. 55 The Raad van State next examined by special procedure certain confidential evidence in the State Secretary’s file together with the “operational material” on which the letter sent to him by the BVD on 3 March 1993 (paragraph 51 above) was based. 56 Taking the above matters into account, the Raad van State went on to rule as follows: “In the light of the above evidence, the [Raad van State] holds there to be sufficient indication that the [applicant] was, at the time the decision [of 26 March 1993] was taken, the chairman and the head of the CPP. In addition, the evidence supports the conclusion that the NPA is subject to the Central Committee of the CPP and the conclusion that, at the time the decision [of 26 March 1993] was taken, the [applicant] had at least attempted to effectively direct the NPA from the Netherlands. The [Raad van State] also holds there to be sufficient indication based on public sources alone, such as reports by Amnesty International, that the NPA is responsible for a large number of terrorist acts in the Philippines. The evidence also provides support for the conclusion that the [applicant] has at least attempted to direct the abovementioned activities carried out under the control of the NPA in the Philippines. The evidence supplied also provides support for the [State Secretary’s] contention that the CPP/NPA maintain contacts with terrorist organisations throughout the world and that there have been personal contacts between the [applicant] and representatives of such organisations. However, the evidence does not provide support for the conclusion that the [applicant] directed the operations in question and is responsible for them to such an extent that it may be held that there are serious reasons to suppose that the [applicant] has actually committed the serious crimes referred to in [Article 1F of the Geneva Convention]. In that regard, the [Raad van State] has expressly taken into account the fact that, as it has already held in its judgment of 17 December 1992, Article 1F of the Geneva Convention must be narrowly construed. The [Raad van State] considers accordingly that the [State Secretary] was not entitled to conclude, on the basis of the abovementioned evidence, that the [applicant] should be denied the protection afforded by the [Geneva] Convention.” 57 The Raad van State also held that the applicant had sound reasons to fear that he would be persecuted if he was sent back to the Philippines and that he should accordingly be treated as a refugee for the purposes of Article 1(A)(2) of the Geneva Convention. 58 The Raad van State then considered the merits of the State Secretary’s alternative reason for refusing the applicant admission to the Netherlands on grounds of public interest, on the basis of the second paragraph of Article 15 of the Netherlands Law on Aliens. 59 In that regard, the Raad van State held in particular as follows: “While the [Raad van State] acknowledges the importance of the [State Secretary’s] concern, particularly in view of the indications he has recorded of personal contacts between the [applicant] and representatives of terrorist organisations, that cannot justify recourse to the second paragraph of Article 15 of the Law on Aliens if there is no guarantee that the [applicant] will be permitted to enter a country other than the Philippines. It is precluded by the fact that such a refusal to admit the [applicant] must be regarded as being contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.” 60 Following that judgment, the State Secretary, by decision of 4 June 1996, again rejected the applicant’s request for review of his decision of 13 July 1990. He ordered the applicant to leave the Netherlands, but decided at the same time that the applicant should not be deported to the Philippines for so long as he had a well-founded fear of being persecuted within the meaning of the Geneva Convention or of treatment contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”). 61 By decision of 11 September 1997 … [the Rechtbank] dismissed the action brought by the applicant against the State Secretary’s decision of 4 June 1996 on the basis that it was unfounded. 62 In the course of the proceedings before the Rechtbank, all the documents relating to the investigation carried out by the BVD into the applicant’s activities in the Netherlands, and in particular the letter from that organisation to the State Secretary of 3 March 1993 (paragraph 51 above), as well as the operational material on which that letter is based, were produced in confidence to the Rechtbank. The President of the Rechtbank examined them under a special procedure. On the basis of the report prepared by its President, the Rechtbank decided that the restriction on making those documents available to the applicant was justified. As the latter had given the consent to that effect required by the legislation, the Rechtbank none the less took account of the content of those documents in order to decide the case. 63 The Rechtbank then considered whether the decision contested before it could be upheld, in so far as it refused the applicant admission as a refugee and the granting to him of a residence permit. 64 With regard to the facts on which the decision was based, the Rechtbank referred back to the judgment of the Raad van State of 1995. 65 On the basis of that judgment, the Rechtbank considered that it must be regarded as settled in law that Article 1F of the Geneva Convention could not be invoked against the applicant, that the latter had a well-founded fear of being persecuted within the meaning of Article 1A of that Convention and of Article 15 of the Netherlands Law on Aliens and that Article 3 of the ECHR prevented the applicant from being deported, directly or indirectly, to his country of origin. 66 The Rechtbank next considered the question whether the judgment of the Raad van State of 1995 entitled the State Secretary to refuse the applicant admission as a refugee, pursuant to the second paragraph of Article 15 of the Netherlands Law on Aliens, which provides that “admission can be refused only on important grounds of public interest if that refusal would compel the alien to go immediately to a country referred to in the first paragraph”, when the State Secretary had failed to guarantee the applicant admission to a country other than the Philippines. 67 In that regard the Rechtbank quoted in full the paragraph of the judgment of the Raad van State of 1995 set out in paragraph 59 above. 68 The Rechtbank then ruled on the question whether the State Secretary had properly exercised his power to derogate from the rule that an alien is normally to be admitted to the Netherlands as a refugee where he can establish a well-founded fear of being persecuted within the meaning of Article 1A of the Geneva Convention and no other country will admit him as an asylum seeker, as, in the Rechtbank’s opinion, was the position in that case. In that regard, the Rechtbank held as follows: “In the opinion of the Rechtbank, it cannot be argued that the [State Secretary] has not used this power reasonably in respect of the [applicant], taking into account the ‘essential interests of the Netherlands State, namely the integrity and credibility of the Netherlands as a sovereign State, particularly with regard to its responsibilities towards other States’, also recognised by the [Raad van State]. The facts on which the [Raad van State] based that assessment are also of overriding importance as far as the Rechtbank is concerned. It has not been shown that a different significance should have been attributed to those facts by the [State Secretary] at the time the decision [at issue in the case] was taken. The [applicant’s] observations on the changed political situation in the Philippines and on his role in the negotiations between the Philippine authorities and the [CPP] do not affect that, since the important reasons — as is clear from the judgment of the [Raad van State] — are based on other facts.” 69 The Rechtbank accordingly dismissed as unfounded the applicant’s appeal against the refusal to admit him to the Netherlands as a refugee. 70 The Rechtbank also dismissed as unfounded the applicant’s challenge to the refusal to grant him a residence permit. Ruling more particularly on the question whether the State Secretary had taken his decision after a reasonable weighing up of interests, the Rechtbank referred to its findings quoted in paragraph 68 above and added that the State Secretary had acted reasonably in attaching less weight to the interests invoked by the applicant in that regard.’