ITEMID: 001-70903
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PANEVSKII AND OTHERS v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The first applicant, Mr Vitalii Vladimirovich Panevskii, is a national of Moldova from its Transdniestrian region and was born in 1981. The second applicant, Ms Olga Smirnova, was born (to a Ukrainian father and Moldovan mother) in Transdniestria in 1972. She holds neither a Ukrainian nor Moldovan passport: she obtained a passport from the Transdniestrian authorities but it was confiscated in Transdniestria in February 2002. The third applicant, Patrick Smirnov, is the first and second applicants’ child: he was born in Ireland in July 2002 and therefore holds an Irish passport.
The references to the Transdniestrian and Moldovan authorities are made solely for the purpose of distinguishing between actions undertaken in the name of those authorities. Prior to the events in question, the first and second applicants were living in the Transdniestrian region of Moldova.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant’s parents were killed in the hostilities of 1992 and he lived in an orphanage from July 1992 until June 1996. He claims that he has been a Jehovah’s Witness since in or around 1993.
By summons of the Transdniestrian authorities of 14 September 1999, the first applicant was required to present himself for military service in Transdniestria on 15 September 1999. The summons stated that he would be subjected to sanctions if he did not attend. On the copy of the summons submitted to this Court was a hand-written note (of 19 October 1999) of a Moldovan criminal investigator indicating that the copy summons had been placed on the file of that investigator as evidence in a case (No. 18/92604-92) against the first applicant. He did not respond to the call for military service and claimed before this Court that this was because of his religion.
By summons dated 22 September 1999 and issued by the Transdniestrian authorities, the first applicant was required to attend the office of a criminal investigator on 22 September 1999 on the basis of a suspected breach of Article 338 of the Transdniestrian Criminal Code (failure to present for military service). A further summons was issued by the same authority for the applicant’s attendance on 24 September 1999. A copy of each summons was submitted to this Court and both had the same hand-written note from the same Moldovan criminal investigator.
The first applicant claimed as follows: he attended that interview and two police entered the room and beat him violently with a stool. They told him that he would be prosecuted for failing to report for military service. His arm was fractured and he had injuries to his back. He immediately left Transdniestria for Moldova where he was assisted by other Jehovah’s Witnesses. He was obliged to make a report to the police in Moldova about his injuries before he could get medical treatment. He obtained the report and then the medical treatment. He submitted to this Court a “legal-medical” report of a doctor assigned by the Moldovan police: it was stamped by the Moldovan Ministry of Health and dated 24 September 1999. Its stated purpose was to examine how the injuries had been caused. Reference was made to a “dislocation of his right arm near the elbow” and to “contusion on the left leg”. The first applicant claimed that this report put the Moldovan authorities on notice that he had avoided military service in Transdniestria.
On 28 September 1999 the Transdniestrian authorities published a “search order” including a photograph and description of the physical characteristics of the first applicant noting that he was accused of offences under, it appears, Articles 172-174 of the Moldovan Criminal Code (avoidance of military service). The same hand-written note of the Moldovan criminal investigator was on the copy of that order submitted to this Court. By summons dated 18 October 1999 and issued by the Moldovan authorities, the first applicant was requested to attend on 18 October 1999 before a Moldovan criminal investigator in connection with Article 174 of the Moldovan Criminal Code (concerning avoidance of military service).
By judgment dated 18 December 2001 of the Moldovan Court of First Instance (in Case No. 18/92604-92) the first applicant was found guilty of a breach of Articles 172-174 of the Moldovan Criminal Code. The reasons were noted as follows:
– the first applicant had breached the law on military service in force on all of the territory of Moldova. Indeed he had recognised that he was a deserter;
– by virtue of the agreement between the authorities of Moldova and Transdniestria, everyone charged with offences committed on the territory of Moldova or of Transdniestria and who finds himself within the jurisdiction of one of the parties to that agreement, must be extradited to the authorities seized of the relevant investigation;
– There was no reason requiring the applicant’s recognition as a refugee in Moldova as there was no risk of persecution in Transdniestria because of his political or religious opinions. In addition, there was no possibility of an alternative to military service in Transdniestria.
– Accordingly, the first applicant was to be extradited to Transdniestria to the relevant authorities seized of the investigation there. The date of the extradition would be established by further decision of that court and the first applicant was to be informed by summons. He was required to be present when the date of extradition would be handed down.
By summons dated 1 April 2002 a Moldovan Municipal Court required the first applicant’s attendance on 3 April 2002. He did not appear and a search order was issued for him on 12 April 2002 by the Moldovan Ministry of Internal Affairs citing Articles 172-174 of the Moldovan Criminal Code. His photograph was included as well as a description of his physical characteristics. In April and May 2002 the Transdniestrian authorities also issued three witness summons to the first applicant’s former employer in Transdniestria to attend the criminal investigator on 10 and 27 April and on 20 May 2002. Copies of all three summonses were placed on the Moldovan authorities’ investigation file concerning the first applicant.
The second applicant claimed she had been a Jehovah’s Witness since 1997. It appears that in 1988 she had a child (Egis Smirnov): no complaint to this Court was made by him or on his behalf. The second applicant met the first applicant at a Jehovah’s Witness meeting in January 1999 in Transdniestria. She did not accompany the first applicant when he left for Moldova in September 1999 although she visited him on a number of occasions in Moldova.
She claimed that she was summonsed to appear four times before a criminal investigator in Transdniestria (between September 2001 and February 2002). She attended on each occasion. She believed that the Transdniestrian police knew that she had contact with the first applicant and therefore maintained pressure on her. Initially they questioned her as a witness, requiring information about the first applicant. They then began to threaten to charge her with a criminal offence. They had searched her flat on a number of occasions during the winter of 2001. In February 2002 they searched her flat and found some Jehovah’s Witness literature. Accordingly, in February 2002 when she appeared before a criminal investigator, she claimed that the authorities took her passport, made her sign a document undertaking not to leave the country and were preparing to charge her with illegal possession of the literature. She was scared and was already pregnant with the first applicant’s child. She submitted a copy of one summons: it was difficult to decipher its date but it required her to appear before a Transdniestrian criminal investigator for questioning (under a provision of the Transdniestrian Criminal Code) and to bring her passport.
She therefore left in February 2002 and joined the first applicant in Moldova on 5 March 2002.
Once the first applicant received the summons from the Moldovan authorities of 1 April 2002, he and the second applicant left Moldova.
They travelled to Romania where they got on a truck which took them to Ireland. They arrived in Ireland on 5 April 2002. They applied for asylum on 8 April 2002. They completed their refugee status questionnaires (19 and 21 April 2002, respectively) and they were both interviewed on 27 August 2002. Reports pursuant to section 11 and 13 of the Refugee Act 1996 were prepared.
On 1 July 2002 the third applicant was born in Ireland and he obtained an Irish passport on 15 January 2003. The first and second applicants’ consequent request for residency (made in July 2002) has not yet been determined.
The first applicant completed his refugee status questionnaires on 19 April 2002 and was interviewed on 27 August 2002. He claimed that he was a Jehovah’s Witness and had therefore refused military service and that he would be persecuted for his faith in Transdniestria. On 10 October 2002 the Commissioner decided not to grant refugee status, finding as follows:
“[The first applicant] has not demonstrated a well founded fear of persecution under a [Geneva] Convention ground. In order to qualify for refugee status [the first applicant] must “demonstrate a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and that he is unable or unwilling to avail himself of the protection of his country of origin. The incidents he referred to would not have amounted to persecution ...
In relation to the [first] applicant’s claims it cannot be doubted that Jehovah Witnesses do experience some degree of discrimination in the Transdniestrian region of Moldova and that distribution of any material in relation to this religious group is illegal. It is important then to consider that the [first] applicant seems to have been content to live in such an environment as previous to his problems in relation to military service he made no attempt to leave the Transdniestrian region and move to the Moldovan controlled part of the country where practice of the Jehovah Witness religion is permitted. This would seem to indicate that up to that point the [first] applicant certainly had not been persecuted in Transdniestria, such would have been the opportunity for him to leave the Transdniestrian region. According to the US State Department report the option of internal flight clearly would have been an option to the [first] applicant at this time.
[The first applicant] claims to have attended a court hearing at which it was decided he should be extradited to Transdniestria. In addition, he claims to have subsequently been given a hearing date for the Spring of 2002 at which his extradition date to Transdniestria was to be set. He then states that it was after receiving this notice of the second hearing that he left Moldova. It is in my opinion highly doubtful if somebody up for extradition would be released until a final date for his extradition was set. It would seem most peculiar that he would not have been kept in custody until his alleged extradition, especially considering he would be such a major flight risk.”
The first applicant was informed of the recommendation of the Commissioner by letter dated 24 October 2002.
The second applicant completed her refugee status questionnaires on 21 April 2002 and was also interviewed on 27 August 2002. She indicated that the first applicant was a Jehovah’s Witness from birth and that she was a Jehovah’s Witness since approximately 1997. She responded in some detail to numerous and specific questions on the Jehovah’s Witness religion. She indicated that baptism was important but that not every Jehovah’s Witness was baptised. She described the first applicant’s failure to respond to his call to complete military service, how he was beaten by the police in Transdniestria and how he left Transdniestria for Moldova together with the extradition proceedings there. She also described how she had been summoned to appear before a criminal investigator in Transdniestria and the searches of her flat. She considered that it would be difficult for them to live in Moldova (inter alia, she could not speak Moldovan) and if she moved to Ukraine she would have had to leave the first applicant. She noted that, if they returned to Transdniestria, the authorities might leave her alone but the first applicant would be imprisoned. A report was prepared on 3 September 2002
In September 2002 the second applicant was admitted to a psychiatric hospital following an overdose of antidepressant drugs she had brought from Moldova. She was discharged 24 hours later and was referred to a mental health centre. She was there prescribed milder anti-depressant medication and a mild sedative which she took for three months. Having requested a medical report from the centre (concerning her capacity to participate in a hearing) in order to obtain an adjournment of her asylum proceedings, she was informed that the practice was that the centre would issue such a certificate following an official request from the second applicant’s lawyers or the relevant tribunal. She claimed that, given the difficulties in communicating and securing an appointment with the RLS, the request for such a certificate was not made and on the day of the hearing she was advised by her legal advisers not to raise her condition or medication with the tribunal.
On 2 October 2002 the Commissioner decided not to recommend the grant of refugee status. It was noted that:
“This ongoing pressure from the police could have indeed created in the mind of the [second] applicant a subjective fear of persecution. The [second] applicant stated that she became increasingly concerned about the actions of the authorities as time went by, and felt that she might be charged with an offence when her passport was retained, and she signed an order to remain in Transdniestria. [The second applicant] was additionally worried because Watch Tower literature was found in her home when it was searched in February 2002. As the applicant herself stated, ... emotions are important. ...
Objectively, if one examines all aspects of the [second] applicant’s case, and the perceived persecution she faced in Transdniestria, it is felt that even on a cumulative basis the applicant did not face what would amount to persecution, as defined by the 1951 Geneva Convention, ... Additionally, it should be noted that the [second] applicant claims to have moved freely between the Transdniestria region and Moldova when she went to visit her partner. This point raises a question over the well-foundedness of the applicant’s fear of persecution in Transdniestria.
An important aspect of any claim for asylum is the issue of national identity. [The second applicant] stated that she is Ukrainian, and stated that she thinks her partner is Moldovan. Technically everyone in Transdniestria is a citizen of [Moldova]. The [second] applicant stated that her passport was confiscated ... by the Transdniestria authorities. [She] did however, submit her birth certificate, which states that she was born in [Transdniestria] in 1972; importantly this certificate states that [the second applicant’s] mother is Moldovan and her father is Ukrainian.
Examining the citizenship laws of Moldova, specifically Article 11, it seems that [the second applicant] is entitled to citizenship of [Moldova], and would therefore be afforded the protection of this state. [The second applicant] stated that she was concerned that she would not be able to live in Moldova because of the language differences, and the old system of registration.
The law of registration has changed in Moldova. The authority to register individuals has been modified. It is no longer the police who issue identity documents, rather it is the responsibility of the Department for Information and Technology, which is no longer part of the Department of the Interior. Further the largest minority group in Moldova is ethnic Ukrainian. Most people, if not all, speak Russian in Moldova, and evidence suggests that Russian remains an important spoken language in Moldova today.
Considering the above COI [country of origin information], in addition to the [second applicant’s] own remarks concerning her ethnic background, in addition to the freedom which [the second applicant] seemed to have when visiting her husband in [Moldova], overall, it is felt that [the second applicant] would have been able to relocate within Moldova, and therefore would have effectively removed herself from the errant behaviour of the local [Transdniestrian] police. There is no objective evidence which would suggest that [the second applicant] could not have found protection and safety in [Moldova] had she sought it.”
The Commissioner concluded, in rejecting her application for asylum:
“[The second applicant] is claiming asylum because of her imputed political opinion. There is a considerable amount of COI which states that the option of alternative service does not exist and that objection to military service for reasons of religious conscience is not respected in the Transdniestrian state. Additionally, there is evidence which shows that the authorities of the Transdniestrian region do discriminate against members of the Jehova’s Witness Church.
Refugee status as defined by the 1951 Geneva Convention is reserved for those persons who are in need of international protection. Considering all aspects of the [second applicant’s] claim – the alleged persecution which [the second applicant] experienced, and the option for [the second applicant] to relocate to [Moldova], it is felt that the applicant does not meet the provisions of the 1951 Geneva Convention needed to be declared a refugee.”
The second applicant was informed of the recommendation of the Commissioner by letter dated 10 October 2002.
Both appealed against the recommendation on the basis of notices of appeal prepared by counsel instructed by the Refugee Legal Services (RLS).
On 16 December 2002 the Refugee Appeals Tribunal (“the Tribunal”) decided to uphold the recommendation of the Commissioner and to reject their appeal (the applicants were legally represented). The first applicant maintained his asylum claim on the basis of his avoidance of military service in Transdniestria and his religion. The second applicant’s request for asylum was based on the Transdniestrian authorities’ prosecution of her concerning the Jehovah’s Witness material found in her home. The Tribunal found as follows:
“The applicants in this matter base their claim for refugee status on persecution because of their religious beliefs. ...
The first ... applicant stated that he fled Transdniestria and went to Moldova because he received his call up papers to do his military service. He stated that he did not wish to complete his military service because he had been a member of the Jehovah’s Witnesses since the age of twelve.
On the basis of his answers in relation to his membership, particularly in relation to the date of birth of Jesus (which he stated was December 25th, when Jehova’s Witnesses deem it to be October 1st), I am not persuaded that the applicant is a member of the Jehovah’s Witnesses.
The applicant was asked if he had received sacraments as a member of the Jehovah’s Witness and stated “no” because he had not reached that level. I am of the view, from the [first] applicant’s evidence, that it is unlikely that he is a member of the Jehovah’s Witnesses given that he claims to be a member since the age of 12 and has not yet been baptised. (Baptism and The Lord’s Supper are the only Sacraments recognised by Jehovah’s Witnesses.) In view of this, I find his evasion of military service does not amount to persecution for any reason contemplated by Section 2 of the Refugee Act 1996 (as amended).
With regard to the second ... applicant, I find her evidence that the police searched her apartment every week after the applicant left for Moldova to be contradicted by evidence from her and the first ... applicant. The first ... applicant stated that a couple of days after he arrived in Transdniestria (sic), he applied to the local police station for a forensic medical certificate to enable him to get medical treatment for his injuries. He stated that, as a result of this, the police in Transdniestria (sic) started extradition proceedings on the grounds that he was avoiding military service. It is clear from this that the police in Transdniestria were aware of the location of the first ... applicant and, in that regard, I find the second ... applicant’s evidence that he apartment was searched on a weekly basis to be implausible.
The second ... applicant, together with the first ... applicant, decided to leave Moldova and travel to Ireland. I am aware from country of origin information (US State Department Country report 2000) that citizens of Transdniestria are free to travel to Moldova. I am also of the view that the second ... applicant could have relocated to Moldova and lived there if she wished. Her reasons for leaving Transdniestria would appear to be that she was being investigated for a criminal offence. In my view, the [second] applicant was fleeing prosecution and not persecution. In light of this, I find that the applicant has not demonstrated a well-founded fear of persecution while she lived in Moldova.
In the circumstances, I find that the applicants are not refugees within the meaning of Section 2 of the Refugee Act 1996 (as amended).”
By letter dated 31 December 2002 the Tribunal informed the first and second applicants of its decision (as required by section 16(17)(a) of the 1996 Act). A letter dated 7 January 2003 to the second applicant from the Legal Aid Board indicated that it was not in a position to recommend that legal aid be granted to her in order to institute judicial review proceedings.
Section 2 of the Refugee Act 1996, as amended by the Immigration Act 1999 and the Immigration Act 2003, (“the 1996 Act”) provides, in so far as relevant, as follows:
“2. In this Act “a refugee” means a person who, owing to a 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 or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it, ...”
Section 5 contains the prohibition of “refoulement”:
“(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.”
Persons seeking asylum may apply to the Minister for Justice for a declaration recognising their status as refugees (section 8 of the 1996 Act). The matter is referred, for investigation, to the Commissioner, who may interview the candidates and prepare a report on those interviews and on the investigations carried out (sections 11 and 13 of the 1996 Act). A recommendation issues which may be appealed to the Tribunal. The applicants are notified of the Tribunal’s decision under section 16 (17)(a) of the 1996 Act. The Minister is then notified of the Tribunal’s decision (section 16(17)(b) of the 1996 Act). If the Tribunal decision upholds a Commissioner’s refusal to recommend refugee status, the Minister “may ... refuse to give the applicant a declaration” of refugee status (section 17(1)(b) of the 1996 Act).
Section 17 further provides, in so far as relevant, as follows:
“(5) Where the Minister has decided to refuse to give a declaration, he or she shall send to the applicant a notice in writing stating that -
(a) his or her application for a declaration has been refused,
(b) the period of entitlement of the applicant to remain in the State under section 9 has expired, and
[(c) the Minister may make an order under section 3 of the [1999 Act], requiring the applicant to leave the State and if the notice contains the statement specified in subsection (4) of that section, it shall not be necessary for the Minister to give the notification specified in the subsection (3) of that section,"],
and a copy of the notice shall be sent to the High Commissioner and to the applicant’s solicitor (if known).
(6) The Minister may, at his or her discretion, grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the State for such period and subject to such conditions as the Minister may specify in writing.
(7) A person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister.”
Section 3 of the 1999 Act confers on the Minister the power to make deportation orders in respect of certain categories of persons (Article 3(2) of the 1999 Act), having had regard to the factors listed at Article 3(6) and once the Minister is satisfied that the deportation would not breach the prohibition of refoulement (section 5 of the 1996 Act). That section, in so far as relevant, provides as follows:
“(1) Subject to the provisions of section 5 (prohibition of refoulement) of the [1996 Act], and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.
(2) An order under subsection (1) may be made in respect of -
...
(f) a person whose application for asylum has been refused by the Minister,
...
(3)(a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.
(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall -
(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and
(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.
(4) A notification of a proposal of the Minister under subsection (3) shall include-
(a) a statement that the person concerned may make representations in writing to the Minister within 15 working days of the sending to him or her of the notification,
(b) a statement that the person may leave the State before the Minister decides the matter and shall require the person to so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving,
(c) a statement that the person may consent to the making of the deportation order within 15 working days of the sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person from the State as soon as practicable, and
(d) any other information which the Minister considers appropriate in the circumstances.
...
(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—
(a) the age of the person;
(b) the duration of residence in the State of the person;
(c) the family and domestic circumstances of the person;
(d) the nature of the person’s connection with the State, if any;
(e) the employment (including self-employment) record of the person;
(f) the employment (including self-employment) prospects of the person;
(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
(h) humanitarian considerations;
(i) any representations duly made by or on behalf of the person;
(j) the common good; and
(k) considerations of national security and public policy,
so far as they appear or are known to the Minister.”
Section 5 provides that a person shall not question the validity of, inter alia, a Tribunal decision (section 16 of the 1996 Act), or a notification or deportation order under section 3(1) and (3)(a) of the 1999 Act other than by an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986). Section 5(2) provides, in so far as relevant, as follows:
“(2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection (1) shall -
(a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and
(b) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Minister and any other person specified for that purpose by order of the High Court, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.
(3) (a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
...
(4) The High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section.
...”
While the bringing of a judicial review application does not have suspensive effect, applicants can (and generally do) seek, at the same time, an interlocutory injunction preventing their deportation following which the Minister generally gives an undertaking not to deport pending the determination of the judicial review proceedings.
In the case of the State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642), Judge Henchy endorsed the “Wednesbury principles” of judicial review (Associated Provincial Picturehouse Limited v. Wednesbury Corporation [1948] 1 KB 223) namely:
“if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere ... but to prove a case of that kind would require something overwhelming”.
Noting that those principles had evolved over the years, he considered:
“that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.”
In O’Keefe -v- An Bord Plenala and Others ([1993] I IR 39) the Chief Justice endorsed Judge Henchy’s test noting that:
“it is necessary that the applicant should establish to the satisfaction of the Court that the decision-making authority had before it no relevant material which would support its decision”.
In accordance with Article 26(2)(1) of the Constitution the President referred sections 5 and 10 of the Bill to the Supreme Court for a decision as to whether those sections were repugnant to the Constitution.
As regards the fourteen-day limitation period, the Court was satisfied that the discretion of the High Court to extend the period wa
The Supreme Court also considered whether the requirement in section 5(2)(b) to satisfy the High Court that there were “substantial grounds” for contesting the validity of the decision in question imposed a burden which, with the fourteen-day limitation period, unreasonably restricted access to court. It noted that the “substantial grounds” requirement had been imposed in other legislation. It recalled that Carroll J in the case of McNamara -v- An Bord Pleanála (no. 1) ([1995] 2 I.L.R.M 125) had interpreted the phrase “substantial grounds” in the Planning Act 1992 as being:
“equivalent to “reasonable”, “arguable” and “weighty” and held that such grounds must not be “trivial or tenuous”. Although the meaning of the words “substantial grounds” may be expressed in various ways, the interpretation of them by Carroll J. is appropriate. The court is of the view that the imposition of a requirement to show “substantial grounds” in an application for leave to apply for judicial review is one which falls within the discretion of the legislature. It is not so onerous, either in itself or in conjunction with a fourteen day limitation period, as to infringe the constitutional right of access to the Courts or the right to fair procedures.”


ITEMID: 001-96380
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KHAN MANWAR v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicant, Mr Manwar Khan, is a Pakistani national who was born in 1957 and lived in Derby. He was represented before the Court by Mr Kesar of HiAce Solicitors, a lawyer practising in Croydon. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in 1957 and lives in Pakistan.
The applicant arrived in the United Kingdom on 26 June 1976 with his parents and siblings and was granted Indefinite Leave to Remain. In 1979 he returned to Pakistan to marry and his wife was granted leave to join him in the United Kingdom. When he returned to the United Kingdom he initially undertook casual work of a manual nature but later suffered a back injury which prevented him from undertaking further permanent work. In 1982 he suffered a stroke, which left him partially paralysed.
The applicant and his wife have four children living in the United Kingdom. The youngest will turn eighteen on 30 December 2009 and the oldest is twenty-seven. The applicant claims that two of his children have a disability. The applicant and his wife separated in 2000 although the applicant submits that they were later reconciled.
Following the applicant’s stroke in 1982, he was convicted of thirty-seven offences for which he was sentenced to a total of fourteen years’ imprisonment. These offences included rape, wounding under section 18 of the Offences against the Person Act 1861, and living off the earnings of a prostitute. On 26 July 2002 the applicant was convicted by a Crown Court of possession of a Class A controlled drug with intent to supply. He was sentenced to three years and six months’ imprisonment.
On 15 July 2004 the applicant was served with a notice of decision to make a deportation order. The Secretary of State had considered the effect that deportation was likely to have upon the applicant and his family but concluded that in the light of the seriousness of the applicant’s criminal offence, his removal was necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals.
The applicant’s appeal against this decision was dismissed on 14 July 2005 by an Immigration Judge.
In particular, the Immigration Judge noted that the applicant continued to deny culpability for the offence and did not demonstrate any remorse for it. During the previous twenty years his disregard of the law had been blatant and frequent and the probation officer considered that the risk of re-offending was high.
In relation to the applicant’s medical condition, the judge accepted that he had some residual physical disability arising from a stroke in 1982. In particular, he had a limp and could not walk without the assistance of a stick. He also accepted that the applicant suffered from asthma and epilepsy, but noted that no medical evidence had been submitted to substantiate the level of the applicant’s claimed disabilities. He concluded that the applicant had exaggerated the extent of his disability, and found that his medical needs could be met in Pakistan.
Moreover, the judge was not satisfied that the applicant no longer had connections in Pakistan. In relation to the applicant’s family life in the United Kingdom, he did not accept that the applicant and his wife had become reconciled. He noted that following his release from prison, the applicant lived in a different town from his wife. Although he visited his wife and children on alternatives weekends, he did not stay in his wife’s home during these visits.
On 11 November 2005 a deportation order was signed. On 6 March 2006 the applicant was detained and removal directions were set for 13 May 2006. The applicant sought permission to apply for judicial review. The Administrative Court deferred the removal directions pending the determination of the judicial review proceedings.
On 7 August 2006 the Administrative Court refused the application for permission to apply for judicial review. The applicant renewed his application for permission to an oral hearing, which took place on 8 March 2007. Permission to apply for judicial review was again refused by the Administrative Court. The applicant made further representations to the Secretary of State, which were rejected as containing no new information.
The applicant was deported to Pakistan on 13 May 2007.
Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State for the Home Department deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
The Rules relating to the revocation of a deportation order are contained in paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorates Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Annex A to Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation 3 years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation would not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking.


ITEMID: 001-98808
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MASSMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Jürgen Massmann, is a German national who was born in 1943 and lives in Baunatal. He was represented before the Court by Mr D. Amelung, a lawyer practising in Munich.
The applicant, in his capacity as a member of the management board of a stock corporation established under German law, was involved in the preparation and conclusion of an agreement between the corporation and the Ministry of Defence and Aviation of the Kingdom of Saudi Arabia in January 1991 on the delivery of thirty-six tanks to Saudi Arabia.
In 1995 the Augsburg public prosecution authorities initiated an investigation against the applicant on charges of breach of trust and evasion of income tax in connection with the said deals (file No. 10 KLs 520 Js 127135/95). He was suspected of having accepted for his own benefit - within the scope of a so-called kick-back procedure on the basis of a collusive agreement with a separately prosecuted arms lobbyist - the return flow of part of the commission payments made by the corporation and affiliated companies to an enterprise of which the said arms lobbyist was the beneficial owner (wirtschaftlicher Eigentümer). He had thereby allegedly acted in breach of his fiduciary duties vis-à-vis his employer and without declaring the funds received in his income tax return.
In the course of the investigations the suspicion arose that in the period from 1991 to 1997 further executive staff of the said stock corporation and affiliated companies, including the applicant, had jointly evaded corporate and trade tax (Körperschafts- und Gewerbesteuer) by declaring commission payments as deductible expenses in breach of applicable tax law. The Augsburg public prosecution authorities severed this part of the investigations and they were subsequently conducted by the local public prosecution authorities with jurisdiction at Düsseldorf (file No. 28 Js 158/00). In the course of the severed preliminary proceedings (Ermittlungsverfahren) documents were confiscated from the corporation's and affiliated companies' premises as well as from the applicant, on the basis of a search warrant of the Düsseldorf District Court dated 5 June 2000.
By a decision of 12 October 2000 the Augsburg Regional Court (Landgericht) ordered the seizure of the documents that had previously been confiscated by the Düsseldorf public prosecution authorities in the separate preliminary proceedings. The Düsseldorf Public Prosecutor provided some of the documents, including analysis reports.
On 6 November 2001 the main hearing against the applicant and a co-accused member of the managing board on charges of income tax evasion and breach of trust was opened before the Augsburg Regional Court (file No. 501 Js 127135/95). On the same date defence counsel lodged a first application to obtain the entire file in the separately conducted investigation proceedings from the Düsseldorf public prosecution authorities and requested that the hearing be adjourned.
On 8 November 2001 the Augsburg Regional Court refused to adjourn the hearing, and dismissed the applicant's request to obtain the file in the parallel proceedings as premature.
On 6 December 2001 defence counsel again lodged an application to obtain the file in the parallel proceedings. He claimed that the content of the file would demonstrate that the applicant had not played a significant role in the transactions at issue. He further pointed out that further members of the management of the affiliated group who were suspects in the parallel proceedings together with the applicant had been summoned as witnesses in the proceedings before the Augsburg Regional Court. Effective questioning of these witnesses would only be possible if the defence was previously granted access to the file in the parallel proceedings. By a decision of the same day the Regional Court ordered that the file be obtained.
By a letter dated 12 December 2001 the Düsseldorf Public Prosecutor stated that while there was no concern about granting the acting Chamber at the Augsburg Regional Court access to the file, the request for the applicant's counsel to have access to it had to be dismissed pursuant to Article 147 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see Relevant Domestic Law below) on the ground that the preliminary investigations in the separate proceedings were ongoing and disclosure of the remaining documents might put the purpose of the investigations at risk. This was particularly the case because defence counsel was representing the applicant in both proceedings. The Augsburg Regional Court therefore refrained from obtaining the file.
On the occasion of hearings that took place on 13 December 2001 and 8 and 10 January 2002 the applicant's counsel lodged further applications for an adjournment of the hearing of the witnesses who were at the same time suspects in the parallel preliminary proceedings until the defence had had the opportunity to examine the file in those proceedings. He claimed that this was necessary with a view to preparing the questioning of the witnesses and in order to determine the scope of the witnesses' privilege to refuse evidence and not to incriminate themselves on the ground that they were also suspects in the parallel preliminary investigations. Referring to the Düsseldorf public prosecution authorities' refusal of access to the file, the Regional Court rejected these requests and heard the witnesses. The Regional Court pointed out that it would always be possible to summon the witnesses again at a later stage.
On 17 January 2002 the Regional Court dismissed requests lodged on 8 January 2002 by the applicant and the co-accused member of the management board for the file in the parallel proceedings to be seized. The Court held that it followed from the legal principle established in Article 96 of the Code of Criminal Procedure read in conjunction with Article 35 of the Basic Law (Grundgesetz - see Relevant domestic law below) that a seizure of the files would only be possible in the event the public prosecution authorities had not sufficiently reasoned their refusal of access to the file. However, in the case at hand the Düsseldorf public prosecution authorities had based their decision on Article 147 § 2 of the Code of Criminal Procedure, stipulating that counsel may be denied access to files in ongoing preliminary investigations if their disclosure might put the purpose of the investigations at risk. This provision constituted a lex specialis in relation to Article 96 of the Code of Criminal Procedure. Furthermore, there was nothing to establish that the decision of the Public Prosecutor to deny access had been arbitrary or unlawful. Given the Düsseldorf Public Prosecutor's refusal to make the file available to defence counsel, the Regional Court had refrained from obtaining the file altogether, specifying that consultation of the file by the court alone would be in breach of the rights of the defence.
A further application to adjourn the hearing lodged on 29 January 2002 by the applicant was rejected by the Regional Court on 5 February 2002. The court held that the fact that it was not possible to obtain the entire file did not justify an adjournment of the hearing, since the Düsseldorf proceedings related to different tax evasion charges and different tax debtors. The Regional Court however pointed out that while it was not possible to obtain the entire file in the parallel proceedings, nothing prevented the applicant and the prosecution authorities from lodging applications in line with the formal requirements to obtain specific documents and other means of evidence included in the file.
On 19 February 2002 the applicant again requested the seizure of the entire file in the parallel proceedings, but this time alternatively limited his request to those documents that had been seized from the applicant on the basis of the search warrant issued by the Düsseldorf District Court on 5 June 2000, as well as all documents compiled within the scope of an independent investigation of the case by an accounting firm and a law firm. By a decision of 5 March 2002 the Regional Court granted the applicant's alternative application and asked the Düsseldorf public prosecution authorities to examine whether disclosure of the said documents was possible.
On 25 March 2002 the Düsseldorf Public Prosecutor agreed to disclose the requested documents and further announced that access to the entire file and residual documents would be granted in August 2002.
By a decision of 4 April 2002 the Regional Court ordered the seizure of the documents specified in its decision of 5 March 2002 on the ground that they could be of importance as evidence in the proceedings and counsel subsequently had the opportunity to examine the requested documents.
By a judgment of 23 July 2002 the Augsburg Regional Court convicted the applicant of tax evasion in three cases as well as of breach of trust and sentenced him to five years' imprisonment.
By written submissions of 28 February 2003 and 22 June 2004 the applicant appealed against the Regional Court's judgment to the Federal Court of Justice (Bundesgerichtshof). He complained, inter alia, that the Regional Court's refusal to seize the file and to adjourn the proceedings until the entire file had been made available prevented him from effectively defending himself in breach of his right to a fair trial as guaranteed by the Basic Law and the Convention. Pursuant to Article 96 of the Code of Criminal Procedure, the Regional Court would have been under an obligation to obtain a decision by the Ministry of Justice of the North Rhine-Westphalia Land in its capacity as the Düsseldorf Public Prosecutor's superior authority on whether the refusal of access to the file was justified. Article 147 § 2 of the German Code of Criminal Procedure did not deal with a refusal of access in separately conducted proceedings and was not applicable in the case at hand. The question of whether Article 147 § 2 of the Code of Criminal Procedure was lex specialis in relation to its Article 96 was of significant importance. He further alleged that the information contained in the file would have demonstrated that the applicant had not played a responsible role in the transactions at issue, contrary to what had been established in the Regional Court's judgment.
By a decision of 11 November 2004 the Federal Court of Justice (file No. 5 StR 299/03), following a statement by the Federal Public Prosecutor (Generalbundesanwalt), quashed the Regional Court's verdict as regards the assessment of the scope of the applicant's guilt (Schuldumfang) and to this extent remitted the case to another Chamber of the Regional Court. At the same time the Federal Court of Justice dismissed, inter alia, the applicant's complaint that due to the failure to obtain the file in the parallel proceedings his defence had been restricted in a decisive point as ill-founded.
It found that it was doubtful whether the applicant had sufficiently substantiated this complaint pursuant to Article 338 no. 8 in conjunction with Article 344 § 2 of the Code of Criminal Procedure. The applicant had not established that there was a link between the alleged procedural flaw and the grounds on which the judgment of the Regional Court had been based. Once the applicant had been granted access to part of the files he would have been under an obligation to specify what missing information would be significant for his defence. Furthermore, defence counsel would have been under an obligation to continue his efforts for a disclosure of the entire file within the time-limit for lodging his appeal on points of law with a view to establishing in his submissions to the Federal Court of Justice that the non-disclosed parts of the file contained information that was significant for the defence. However, the applicant's submissions contained only theoretical conclusions on the possibly relevant content of the file.
The Federal Court of Justice further confirmed that Article 147 § 2 of the Code of Criminal Procedure was lex specialis in relation to Section 96 of the Criminal Code of Procedure. When taking a decision on whether to grant access to files the Düsseldorf Public Prosecutor had to weigh the interest of the accused to effectively defend himself in the proceedings before the Augsburg Regional Court against the necessity to keep the file in the preliminary investigations secret and might for instance grant access to parts of the file. In the case at hand a judicial review of the prosecution authorities' denial to grant access to the files in analogous application of, inter alia, Article 147 § 5 of the Code of Criminal Procedure might be considered. The Regional Court on itsRegional Court until disclosure of the entire file.
By a decision of 6 September 2005 (file No. 2 BvR 10/05) which was served on the applicant on 21 September 2005 the Federal Constitutional Court declined to consider the applicant's constitutional complaint.
It found that his complaint about the Regional Court's refusal to seize the documents retained by the Düsseldorf Public Prosecutor was inadmissible since the applicant had not exhausted the appropriate procedural domestic remedies in this respect. He had failed to lodge applications for the taking of particular evidence, even though the Regional Court had indicated this possibility and even though the applicant had been granted access to parts of the files by the Düsseldorf Public Prosecutor. He had in particular been able to consult all the documents which had been the subject of his requests dated 29 January and 19 February 2002. From the material that had been made available to him he must have been in a position to reason what other specific means of evidence would be needed for his defence. Given the fact that the proceedings had lasted until the end of July 2002 he could have lodged further corresponding applications for the taking of evidence. However, allegations in respect of specific means of taking evidence had been made by the applicant for the first time during the proceedings before the Federal Court of Justice.
The Federal Constitutional Court further pointed out that the Düsseldorf public prosecution authorities had announced that the entire file would be released in August 2002 and that the judgment of the Augsburg Regional Court had been pronounced on 23 July 2002. The applicant would have had the opportunity to lodge an application for an adjournment of the hearing of 23 July 2002 thereby avoiding the alleged violation of his basic rights instead of subsequently lodging an appeal against the first-instance judgment.
In addition, the Federal Constitutional Court found that the applicant's complaint was inadmissible on the ground that he had not established that the contested judgment was based on the alleged violation of his basic rights as required by Sections 23 § 1 and Section 92 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz). In his submissions before the Federal Court of Justice and the Federal Constitutional Court he had not sufficiently substantiated that the consideration of the parts of the file that had not been available during the proceedings before the Regional Court would have led to a different assessment of the case by the latter, even though he obviously had access to the retained parts of the file after termination of the main proceedings before the Augsburg Regional Court.
The separately conducted preliminary proceedings regarding the evasion of corporate and trade tax (file No. 28 Js 158/00) were stayed by the Düsseldorf public prosecution authorities on 10 June 2005.
Following remittal of the proceedings concerning the charges on breach of trust and evasion of income tax as regards the assessment of the scope of the applicant's guilt by the Federal Court of Justice, the Augsburg Regional Court, by a judgment of 19 December 2005 (file No. 501 Js 127135/95) reduced the applicant's sentence to two years and six months imprisonment.
Following a further appeal lodged by the applicant, the Federal Court of Justice by a decision of 10 January 2007 amended the Regional Court's judgment of 19 December 2005 and reduced the applicant's sentence to two years imprisonment on probation. It dismissed the remainder of the applicant's appeal as ill-founded.
By written submissions of 23 February 2007 the applicant lodged a constitutional complaint alleging, inter alia, a violation of his right to a fair trial on grounds different from those being the subject of the instant application. The latter proceedings are still pending before the Federal Constitutional Court.
Pursuant to Article 35 of the Basic Law all federal and authorities of the Länder shall render legal and administrative assistance to one another.
Article 96 of the Code of Criminal Procedure stipulates that access to files or other documents kept by public authorities or public servants may not be requested if their superior authority declares that the publication of these files or documents would be detrimental to the welfare of the Federation or of a German Land.
Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files which have been presented to the trial court or which would have to be presented to the trial court in case of indictment and to inspect the exhibits. Paragraph 2 of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk. Pending the termination of the preliminary investigation, it is for the Public Prosecutor's Office to decide whether to grant access to the files or not; thereafter it is for the president of the trial court (Article 147 § 5).
Pursuant to Article 338 no. 8 of the Code of Criminal Procedure a judgment shall always be considered to be based on a violation of the law if the defence has been inadmissibly restricted by a decision of the court on a topic which was decisive for the judgment. Pursuant to Article 344 § 2, in the event an applicant complains of procedural flaws, he has to establish the facts as regards such flaws.
Section 23 of the Federal Constitutional Court Act requires that applications for the institution of proceedings lodged with the Federal Constitutional Court must be lodged in writing, state the reasons for the complaint and specify the requisite evidence. Section 92 of the said Act stipulates that the right which has allegedly been violated has to be specified, as well as the action or omission of the organ or authority which has allegedly been at the origin of the violation.


ITEMID: 001-75994
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: JELTSUJEVA v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Ms Anna Jeltsujeva, is a Russian national who was born in 1984 and currently lives in Harlingen. She was represented before the Court by Mr H.J.M. Nijholt, a lawyer practising in Emmen.
On 13 December 2000, following previous incidents in which stones with hostile notes had been thrown through windows and fires lit before the front door, the applicant’s parental home in Gudermes (Chechnya) – where her father was working as the assistant of the Minister of the Gudermes Baptist Church – was raided by a number of masked men, who shouted to the applicant and her parents that they should disappear. The applicant left her parental home as soon as she could. After having spent the evening in the house of a friend, a foreign missionary named David who was the Minister of the Gudermes Baptist Church, she returned to her home at about midnight. She found the house ransacked and a large blood stain in the room where she had last seen her father. The following day, the applicant and David travelled to Moscow where the applicant stayed until 3 January 2001 with another missionary named Bill, whereas David returned to Gudermes, where he made enquiries about the applicant’s parents without obtaining any results.
On 4 January 2001, the applicant left Russia via Moscow airport and travelled by air to the Netherlands, where on 5 January 2001 she applied for asylum at the Zevenaar asylum seekers centre.
On 12 January 2001, the applicant was interviewed by a Netherlands immigration official in order to establish her identity, nationality and travel itinerary. The applicant stated that she was born in Gudermes, and that she had gone to school between September 1991 and May 1999 in Rostov (Russia) where she and her parents had then been living. She and her parents had moved to Gudermes in May 1999. She further stated that Bill had made all arrangements for, and had accompanied her on the journey to, the Netherlands. Once in the Netherlands, Bill had taken her to Zevenaar where, according to him, she would find help. The applicant initially stated that she had held a birth certificate but that this document had been taken from her by those who had brought her to Zevenaar. She subsequently stated that this document had been made by the “travel agent”. She also declared that she had never held a passport or other identity document.
On 22 May 2001, a second interview was held with the applicant on her reasons for applying for asylum. She stated, inter alia, that she was a native Russian speaker and did not speak Chechen, that she and her family had moved to Rostov when she was a little child not yet attending school, and that she and her parents had returned to Gudermes in 1999 because her father had wished to establish a church there. After having attended school in Gudermes for one week, she had not wanted to go back to school as she had been bullied and assaulted by other pupils because she was not a Muslim. She further declared that she had seen her birth certificate for the last time in her parental home in Gudermes and that, to her knowledge, her parents had not had any problems with the Russian authorities.
According to the conclusions of a medical age verification test carried out on 17 August 2001 and commissioned by the Netherlands immigration authorities as the applicant did not hold any identity documents, the applicant was in fact 20 or 21 years old and not 16 as submitted by her.
On 22 February 2002, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request, holding that no credence could be attached to the applicant’s asylum account and that, in any event, it had not been established that the applicant had a well-founded fear of persecution or that it would not be possible for her to settle elsewhere in her country of origin. The applicant filed an appeal against this decision with the Regional Court (arrondissementsrechtbank) of The Hague.
On 5 February 2004, following a hearing held on 5 June 2003, the Regional Court of The Hague sitting in Assen rejected the applicant’s appeal. It rejected the applicant’s argument that she could not be held responsible for not having any identity or travel documents. In so far as the applicant challenged the results of the age verification test, which had been taken into account by the Deputy Minister in the assessment of the credibility of her account, the Regional Court found – referring to the findings in a ruling given on 23 October 2003 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) – that the procedure by which the Deputy Minister had obtained the medical opinion about the applicant’s age fell short of the requirements of due care to be respected in administrative proceedings. Consequently, this opinion could not have been taken into account in the assessment of the credibility of the applicant’s asylum account. However, it further found that the other elements taken into account by the Deputy Minister in this respect, namely various inconsistencies in the applicant’s account, were sufficient for carrying the conclusion that no credence could be attached to the applicant’s asylum account. The applicant further argued that a return to her country of origin would entail undue hardship on account of the general unsettled situation there. On this point the Regional Court noted that the Administrative Jurisdiction Division, in two rulings given on 4 November 2003 and 18 December 2003, had accepted as reasonable the position taken by the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie – the successor to the Deputy Minister of Justice) on the basis of official reports (ambtsberichten) on the situation in the Northern Caucasus in Russia drawn up on, respectively, 30 March 2001, 5 April 2002 and 14 May 2003 by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) that there was no categorical emergency situation in the sense that in the entire Russian Federation there was a risk for the life and limb of persons of Chechen origin and that, on this basis, the Administrative Jurisdiction Division had further accepted the Minister’s decision not to introduce a policy of class protection based on country of origin (categoriale bescherming) in respect of asylum seekers of Chechen origin. On the basis of the findings in these two rulings, the Regional Court concluded that the situation in the applicant’s country of origin was not such that her expulsion to Russia would entail undue hardship on account of the general situation there.
The applicant’s subsequent appeal to the Administrative Jurisdiction Division was dismissed on 17 June 2004. It upheld the ruling of 5 February 2004 of the Regional Court, holding:
“The grievances raised do not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to Article 91 of the 2000 Aliens Act (Vreemdelingenwet), no further reasoning is called for, since the arguments submitted do not raise questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense.”
No further appeal lay against this decision.
On the basis of section 29 of the Aliens Act 2000 (Vreemdelingenwet 2000), in force at the relevant time, an alien is eligible for a residence permit for the purposes of asylum if, inter alia,
(a) he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or
(b) 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.
To help in the assessment of asylum applications and the establishment of whether it is safe to return rejected asylum seekers, the Minister of Foreign Affairs regularly publishes official country assessment reports (ambtsberichten) on the situation in asylum seekers’ countries of origin. In drawing up these reports, the Minister uses published sources and reports by non-governmental organisations as well as reports by Netherlands diplomatic missions.
The decision of 23 May 2001 rejecting the applicant’s request for asylum was based on information contained in the country reports of, respectively 30 March 2001, 5 April 2002 and 14 May 2003, on the basis of which the Administrative Jurisdiction Division accepted in two rulings given in 2003 the decision of the Minister for Immigration and Integration not to introduce a policy of class protection based on country of origin (categoriale bescherming) in respect of asylum seekers of Chechen origin. Consequently, an asylum request filed by a person hailing from Chechnya is determined on an individual basis.
According to the most recent official country report on the Northern Caucasus region, drawn up on 14 January 2005 by the Netherlands Ministry of Foreign Affairs, Chechens having fled Chechnya since 1999 can in practice not obtain a permanent residence registration in other parts of the Russian Federation and Chechens encounter numerous problems as a result of discrimination both on the part of the authorities (including law enforcement and judicial authorities) and that of the general population. This applies to all parts of the Russian Federation, albeit not everywhere to a same degree. In particular, unregistered Chechens can encounter problems in the exercise of their economic and social rights. The discrimination against Chechens is greatest in Moscow, Stavropol Krai and Krasnodar Krai, where the highest local authorities (such as Mayor Lyuzhkov of Moscow) display an explicitly negative attitude towards Chechens as a result of which the rights of Chechens are not always respected. Chechens also encounter a lot of discrimination in Saint Petersburg and Cheboksary. It frequently occurs in these regions that public officials discriminate against Chechens, mostly by stalling and insisting on a multitude of bureaucratic formalities. However, where an objection or appeal is filed, such abuses are mostly corrected by the municipal or judicial authorities. In the Siberian areas of Saratov, Nizhny Novgorod, Volgograd, Novgorod, Tjumen and Nizhnevartovsk, the position of Chechens is relatively good. For a long period, a Chechen community has been living in Tjumen and Nizhnevartovsk. However, on account of the arctic climate, these are not popular places of residence.
The “Paper on the Situation of Asylum-Seekers from the Russian Federation in the context of the situation in Chechnya”, issued in February 2003 by the United Nations High Commissioner for Refugees (UNHCR) concludes:
“77. Legislative mechanisms and related assistance that would facilitate the settlement of IDPs (internally displaced persons) beyond Chechnya and Ingushetia are not available. Forced migrant status can only be obtained, in practice, on the basis of an individual fear of persecution by Islamic fundamentalists and is therefore not available to the majority of IDPs. Compensation for lost property is not yet available for IDPs who fled Chechnya.
78. Chechen IDPs from the current conflict have had virtually no access or possibility to sojourn legally in Kabardino-Balkaria and Karachai-Cherkessia. In the Republics of North Ossetia-Alania, Stavropol Krai and Krasnodar Krai, the low number of Chechen IDPs can be explained both by restrictive regulations and practice preventing the sojourn of the concerned persons, as well as by the reluctance of the IDPs themselves to venture into regions where the authorities and local residents hold a hostile attitude towards them.
79. In other administrative districts of the Russian Federation, the combination of local restrictive regulations on freedom of movement and freedom of choice of place of sojourn/residence, anti-Chechen feelings among the public, and concerns among local authorities to contain ethnic tensions and to prevent terrorist acts, deprives Chechen IDPs of a genuine internal relocation alternative.
80. As opposed to persons holding residence registration, there is currently no assurance in practice that a person holding registration at the place of sojourn will be issued an extension of such registration or that, in case of travel or stay abroad, such registration will be extended upon return at the place of sojourn.
81. It has been reported by some local NGOs defending the rights of forced migrants that ethnic Russian IDPs are not always well received by the local population and local authorities in their areas of destination. Many of them have reported difficulties in obtaining issuance or renewal of sojourn registration. However, there is no indication of widespread police harassment, as is the case in many regions for Chechen IDPs. In those regions that condition sojourn registration upon the presence in that territory of close relatives, ethnic Russian IDPs may be able to rely upon the presence of family members displaced during the previous 1994-96 conflict.”
On 22 October 2004, the UNHCR issued the “UNHCR Position Regarding AsylumSeekers and Refugees from the Chechen Republic, Russian Federation”. This document states:
“1. Since the February 2003 UNHCR “Paper on the Situation of AsylumSeekers from the Russian Federation in the context of the situation in Chechnya”, some positive developments have taken place in the Chechen Republic, Russian Federation (hereinafter “Chechnya”). These include the adoption of a Constitution, the organization of presidential elections, a number of amnesty declarations and the introduction of compensation mechanisms for lost housing and property. Despite this, the overall situation in Chechnya still raises grounds for serious concern due to targeted persecution, including arbitrary detentions, widespread violence, insecurity and violations of human rights, as well as ongoing hostilities significantly affecting the civilian population and leading to continued forced displacement. Moreover, Chechen militants have claimed responsibility for an increasing number of attacks outside Chechnya, including the assault on law enforcement structures in the Republic of Ingushetia, in June 2004, and the horrific attack in Beslan, North Ossetia-Alania, in September 2004, which lead to the death of over 430 civilians in one week alone, including over 100 children. ...
3. The UN security assessment maintains Chechnya at Phase V, preventing the United Nations (including UNHCR) from establishing a presence in Chechnya. As a result, UNHCR cannot effectively monitor the situation of internally displaced persons or refugees who return to Chechnya. Some limited presence of national staff is currently under discussion.
4. Considering this situation and the lack of a genuine internal flight alternative within the Russian Federation for Chechens, UNHCR maintains the position that:
Chechens whose place of permanent residence was the Chechen Republic prior to their seeking asylum abroad should be considered in need of international protection, as they either:
a) have a well-founded fear of persecution and would therefore qualify as refugees under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol; and/or
b) have left Chechnya owing to serious and indiscriminate threats to life, physical safety or freedom resulting from generalized violence or events seriously disturbing public order.”
According to the United States of America Department of State Annual Report on International Religious Freedom for 2005 in respect of Russia, which covers the period from 1 July 2004 to 30 June 2005, religious matters are not a source of social tension for most citizens, although many citizens firmly believe that at least nominal adherence to the Russian Orthodox Church (ROC) is at the heart of the national identity. However, there are manifestations of hostility toward Roman Catholics and other non-Orthodox denominations. Instances of religiously motivated violence continue, although it often was difficult to determine whether xenophobic, religious, or ethnic prejudices were the primary motivation behind violent attacks. Conservative activists claiming ties to the ROC disseminated negative publications and staged demonstrations throughout the country against Roman Catholics, Protestants, Jehovah’s Witnesses, and other religions considered non-traditional. By most estimates, Protestants constitute the third largest group of believers in the Russian Federation. Representative offices of foreign religious organisations are required to register with state authorities, and they are barred from conducting services and other religious activities unless they have acquired the status of a group or organisation. In practice, many foreign religious representative offices have opened without registering or have been accredited to a registered religious organisation. Representatives of minority religions have expressed the view that some Government officials, particularly in the security services, believe that minority religions – especially Muslims, but also Roman Catholics, some Protestant denominations and other groups – constitute security threats that require greater monitoring and possibly greater control. In 2004, Smolensk and Kursk Oblast authorities adopted laws restricting missionary activity. The Kursk law was based on a 2001 law that was passed in neighbouring Belgorod. Under these laws, foreigners visiting the region are forbidden to engage in missionary activity or to preach unless specifically allowed to do so according to their visas. Foreign religious and other workers have been deterred or prohibited from entering war zones in the North Caucasus, and information about religious activity in the area therefore is less available and reliable than for other regions.
The USA Department of State report further mentions a number of incidents involving Baptist communities, including the firebombing of a Baptist Church on 30 April 2005 in Chelyabinsk following an allegedly pejorative coverage in a news broadcast on a local television channel in which Baptists were presented as a “totalitarian sect”; an unexplained explosion in January 2004 in a building belonging to a congregation of unregistered Baptists in Tula; picketing and distribution of anti-Protestant pamphlets by a youth group founded by the missionary department of Yekaterinburg’s Russian Orthodox Diocese during Sunday services at Protestant churches in Yekaterinburg.