EUROPEAN COMMISSION OF HUMAN RIGHTS
 
 Application No. 25894/94
 
 Shammsuddin Bahaddar
 
 against
 
 the Netherlands
 
 REPORT OF THE COMMISSION
 
 (adopted on 13 September 1996)
 
 
 TABLE OF CONTENTS
 
 Page
 
I. INTRODUCTION
 (paras. 1-19) . . . . . . . . . . . . . . . . . . . . . . . . 1
 
 A. The application
 (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
 
 B. The proceedings
 (paras. 5-14). . . . . . . . . . . . . . . . . . . . . . 1
 
 C. The present Report
 (paras. 15-19) . . . . . . . . . . . . . . . . . . . . . 2
 
 
II. ESTABLISHMENT OF THE FACTS
 (paras. 20-69). . . . . . . . . . . . . . . . . . . . . . . . 4
 
 A. The particular circumstances of the case
 (paras. 20-45) . . . . . . . . . . . . . . . . . . . . . 4
 
 B. The evidence before the Commission
 (paras. 46-51) . . . . . . . . . . . . . . . . . . . . . 8
 
 C. The Bangladeshi background to the present case
 (paras. 52-63) . . . . . . . . . . . . . . . . . . . . . 9
 
 D. The Government's reply to the question put by
 the Commission (paras. 64-65). . . . . . . . . . . . . .11
 
 E. Relevant domestic law and practice
 (paras. 66-69) . . . . . . . . . . . . . . . . . . . . .11
 
III. OPINION OF THE COMMISSION
 (paras. 70-104) . . . . . . . . . . . . . . . . . . . . . . .12
 
 A. Complaints declared admissible
 (para. 70) . . . . . . . . . . . . . . . . . . . . . . .12
 
 B. Points at issue
  (para. 71) . . . . . . . . . . . . . . . . . . . . . . .12
 
 C. As regards Article 2 of the Convention
 (paras. 72-80) . . . . . . . . . . . . . . . . . . . . .12
 
 CONCLUSION
 (para. 81) . . . . . . . . . . . . . . . . . . . . . . .13
 
 D. As regards Article 3 of the Convention
 (paras. 82-101). . . . . . . . . . . . . . . . . . . . .13
 
 CONCLUSION
 (para. 102). . . . . . . . . . . . . . . . . . . . . . .17
 
 E. Recapitulation
 (paras. 103-104) . . . . . . . . . . . . . . . . . . . .18
 
 
DISSENTING OPINION OF MRS. J. LIDDY, MM. E. BUSUTTIL,
J.-C. SOYER, K. HERNDL AND E.A. ALKEMA. . . . . . . . . . . . . . .19
 
APPENDIX: DECISION OF THE COMMISSION AS TO THE
  ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .21
 
I. INTRODUCTION
 
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
 
A. The application
 
2. The applicant is a Bangladeshi citizen, born in 1966, and
residing in the Netherlands. He was represented before the Commission
by Mrs. R. Niemer, a lawyer practising in Amsterdam.
 
3. The application is directed against the Netherlands. The
respondent Government were represented by their agent, Mr. H. von
Hebel, of the Netherlands Ministry of Foreign Affairs.
 
4. The case concerns the applicant's complaint that his expulsion
to Bangladesh would expose him to a serious risk of being arrested,
tortured or killed. The applicant invokes Articles 2 and 3 of the
Convention.
 
B. The proceedings
 
5. The application was introduced on 2 December 1994 and registered
on 9 December 1994.
 
6. On 9 December 1994 the Commission decided, in accordance with
Rule 36 of the Commission's Rules of Procedure, to indicate to the
Government of the Netherlands that it was desirable in the interest of
the parties and the proper conduct of the proceedings not to expel the
applicant to Bangladesh until the Commission had an opportunity to
examine the application in the light of the parties' submissions. On
19 January, 2 March, 22 May, 6 July, 14 September, 26 October,
7 December 1995, 7 March, 18 April and 4 July 1996 the Commission
decided to prolong the application of Rule 36.
 
7. Also on 9 December 1994 the Commission decided, pursuant to Rule
48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
 
8. The Government's observations were submitted on 17 February 1995.
The applicant replied on 7 and 10 April 1995.
 
9. On 22 May 1995 the Commission declared the application
admissible.
 
10. The text of the Commission's decision on admissibility was sent
to the parties on 2 June 1995 and they were invited to submit such
further information or observations on the merits as they wished. The
Government submitted further observations on 4 July 1995. The applicant
did not avail himself of the opportunity to submit further
observations.
 
11. On 7 December 1995 the Commission decided to put a question to
the Government and to transmit their reply to the applicant's
representative for comments.
 
12. The Government submitted their reply to the question on
7 February 1996 after an extension of the time-limit fixed for that
purpose.
 
13. The applicant did not submit any comments on the answer provided
by the Government.
 
14. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
 
C. The present Report
 
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
 
  Mr. S. TRECHSEL, President
 Mrs. G.H. THUNE
 Mrs. J. LIDDY
 MM. E. BUSUTTIL
 G. JÖRUNDSSON
 A.S. GÖZÜBÜYÜK
 A. WEITZEL
 J.-C. SOYER
 H. DANELIUS
 F. MARTINEZ
 C.L. ROZAKIS
 L. LOUCAIDES
 J.-C. GEUS
  M.P. PELLONPÄÄ
 B. MARXER
 G.B. REFFI
 M.A. NOWICKI
 I. CABRAL BARRETO
 B. CONFORTI
 N. BRATZA
 I. BÉKÉS
 J. MUCHA
 D. SVÁBY
 G. RESS
 A. PERENIC
 C. BÎRSAN
 P. LORENZEN
 K. HERNDL
 E. BIELIUNAS
 E.A. ALKEMA
 M. VILA AMIGÓ
 
16. The text of this Report was adopted on 13 September 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
 
17. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
 
 (i) to establish the facts, and
 
 (ii) to state an opinion as to whether the facts found disclose
 a breach by the State concerned of its obligations under
 the Convention.
 
18. The Commission's decision on the admissibility of the application
is annexed hereto as an Appendix.
 
19. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
 
II. ESTABLISHMENT OF THE FACTS
 
A. The particular circumstances of the case
 
20. The applicant applied for asylum or, alternatively, a residence
permit for humanitarian reasons in the Netherlands on 13 July 1990. He
was interviewed by an official of the Ministry of Justice (Ministerie
van Justitie) on 22 May 1991 and submitted that he was a Buddhist and
belonged to the Chakma tribe in the Chittagong Hill Tracts region of
Bangladesh. His parents had been killed by the army when he was eight
years old and he had then been adopted by a Muslim family. From 1974
he had been a member of the illegal organisation "Shanti Bahini". He
had only been eight years old at that time, but children were taught
at an early age to be on the alert for army presence in the area. His
activities for Shanti Bahini had consisted of the gathering of
information concerning movements of Government forces and the mapping
of army routes. He had been able to indulge in these activities
undetected since it was generally unknown that his foster parents were
not his real parents and he was therefore considered a Muslim. In 1987
he had also joined the legal Bangladeshi National Party (BNP).
 
21. On 16 April 1990 the applicant had taken part in a BNP
demonstration against sub-district elections which were to be held from
10 to 26 April 1996. In these elections, businessmen who had settled
in the region were allowed to stand as candidates whereas for native
inhabitants this was not automatically the case. The election of non-
native inhabitants would frustrate the desired autonomy of the region.
Following the dispersal of the demonstration by police, the applicant
had gone to a friend's house from where he had telephoned his foster
father. His foster father had informed him that the police, acting upon
a complaint that the applicant had damaged goods and wounded people in
the course of the demonstration, had searched the house. In the course
of this search the police had come upon papers drawn up by the
applicant for Shanti Bahini which contained information about movements
of Government forces.
 
22. The applicant had prepared to leave his country when he learned,
after a few days, that a warrant for his arrest had been issued in
connection with his activities for an illegal organisation. Until his
departure he stayed with a friend and with relatives of his foster
father. On 30 June 1990 he crossed the border with India on foot and
then travelled to Bombay from where he boarded a flight to the
Netherlands, using a false passport.
 
23. His requests for asylum or a residence permit for humanitarian
reasons were refused on 16 July 1991 by the State Secretary for Justice
(Staatssecretaris voor Justitie). The applicant requested the State
Secretary to review (herziening) this decision. He submitted, inter
alia, that he had joined the BNP to cover up his activities for Shanti
Bahini. He further clarified that his foster parents were not aware of
his involvement with Shanti Bahini.
 
24. The State Secretary denied suspensive effect to the applicant's
request for a review of his decision. In order to obtain an injunction
on his expulsion pending the review proceedings, the applicant
instigated interim injunction proceedings (kort geding) before the
President of the Regional Court (Arrondissementsrechtbank) of The Hague
sitting at 's-Hertogenbosch (nevenzittingsplaats 's-Hertogenbosch).
 
25. On 14 November 1991 the President granted the injunction
requested. The President found the applicant's story consistent and
credible and considered that an investigation was called for into the
authenticity of untranslated documents submitted by the applicant which
might support his allegations. Although it had appeared that the sub-
district elections had taken place from 12 to 25 March 1990 and not
from 10 to 26 April 1990 as submitted by the applicant in his interview
with the official of the Ministry of Justice, the President held that
this interview had taken place more than a year later and that
therefore the conclusion that the applicant's account of events was
untrue was unjustified. The President also had regard to a letter from
Amnesty International of 24 October 1991, which stated that, if it was
true that the applicant had provided Shanti Bahini with information
about military operations and the military were aware of this, he
risked detention and torture upon his return to Bangladesh.
 
26. The applicant was heard by the Advisory Committee on Alien
Affairs (Adviescommissie voor Vreemdelingenzaken) on 21 December 1992.
Asked about his activities for Shanti Bahini the applicant said that
he had been aware of the existence of the organisation from an early
age. From 1974 he had been involved with them albeit marginally. From
1986 he had started to supply this organisation with information about
movements of the Government forces. He would obtain this information
by looking at the destination indicated on boats transporting rations
for the military. Shanti Bahini would be informed of the destination
of the boats and clashes ensued when the military came to collect the
rations. He would furthermore draw sketches on which he indicated
distances between the town of Rangamati and army camps. These sketches
would later be made into detailed maps by Shanti Bahini.
 
27. The applicant also told the Advisory Committee that in the years
1982/1984 he had begun to collect funds for Shanti Bahini from the
local population. The Bengali settlers in particular did not want to
contribute to an illegal organisation but the applicant would tell them
that they had moved into an area which did not belong to them and that
therefore they had to pay a sort of tax. In 1990, after the police had
started looking for the applicant, a Bengali fisherman, Mr. Omar K.,
had filed a complaint against him, in which he was accused of
extortion. The applicant said that from 1984 he used to go to Omar K.
to collect the taxes with three other people. However, the applicant
denied that he had ever exerted pressure on Omar K.
 
28. Asked about the demonstration in April 1990 the applicant said
that since Shanti Bahini were an illegal organisation and therefore
unable to demonstrate publicly the name of the BNP had been used. Some
members of the BNP had been present at the demonstration but the
majority of participants had consisted of Shanti Bahini members.
 
29. After the demonstration had ended in clashes with police, the
latter had made enquiries into who had been present at the
demonstration. To this end they had interviewed a Ward Commissioner,
Mr. Mujibfor A., who lived in the same street as the applicant and who
had recognised him at the demonstration. The applicant, who had gone
to a friend's house after the demonstration, had telephoned his foster
parents and had found out that the police, accompanied by Mr. A., had
gone to the house and had found the sketches he had drawn up for Shanti
Bahini in a locked drawer which had been forced open by the police. His
foster father had been taken to the police station where he had been
questioned about the applicant and the applicant's background. With the
assistance of a lawyer, the applicant's foster father had obtained his
release on bail.
 
30. When the applicant had learned that the police wanted to question
him about his activities for Shanti Bahini, the leader of this
organisation had said that he would be ill-treated at the police
station until he had told them all about his activities for Shanti
Bahini, endangering not only himself but also other members of the
organisation. For this reason it had been decided that the applicant
should leave the country. Shanti Bahini had initially wanted the
applicant to go to India where he would be trained in the use of fire
arms. However, the applicant had refused to go there, since he knew
some other men who had died in Bangladesh after they had returned from
such a training in India.
 
31. The applicant finally told the Advisory Committee that if he was
expelled to Bangladesh he would be arrested and ill-treated by police.
It would be possible to prove his involvement with Shanti Bahini
through the complaint of extortion which had been filed against him.
 
32. On 21 December 1992 the Advisory Committee expressed as its
opinion that the applicant was not a refugee within the meaning of the
Geneva Convention and that he was not eligible to receive a residence
permit for humanitarian reasons. The Advisory Committee held that on
essential points the applicant's account was vague and contradictory.
Thus it had not become established that the applicant was a member of
Shanti Bahini. In this respect the Advisory Committee referred to an
investigation carried out by the Netherlands Ministry of Foreign
Affairs from which it appeared that the declaration submitted by the
applicant and purportedly issued by Shanti Bahini was not authentic.
The Advisory Committee further found that it had not become clear in
what way the applicant had been able to obtain information of value to
Shanti Bahini concerning the movement of army troops.
 
33. The Advisory Committee further took into account that the sub-
district elections which had allegedly been the cause of the
demonstration of 16 April 1990 had at that time already taken place.
Finally, from the investigation carried out by the Netherlands Ministry
of Foreign Affairs it had further appeared that the applicant was only
wanted by the Bangladeshi authorities in connection with a complaint
filed against him by a private person and concerning the civil offence
of extortion for which, under Bangladeshi law, the applicant could
obtain his release on bail and which carried a maximum sentence of
three years' imprisonment.
 
34. Adopting the Advisory Committee's proposal and reasoning, the
State Secretary for Justice rejected the request for a review on
26 March 1993.
 
35. On 31 March 1993 the applicant filed an appeal against the State
Secretary's decision of 26 March 1993 with the Judicial Division of the
Council of State (Afdeling Rechtspraak van de Raad van State), adding
that the grounds for the appeal would be submitted as soon as possible.
As this appeal was denied suspensive effect, the applicant instigated
interim injunction proceedings before the President of the Regional
Court of The Hague sitting at Amsterdam.
 
36. In these interim injunction proceedings the applicant argued,
inter alia, that the declaration of Shanti Bahini, submitted by him in
support of his request for asylum, was authentic but had been issued
by a regional branch of this organisation, which may not have been
known to the Netherlands Ministry of Foreign Affairs when it examined
the authenticity of the document.
 
37. Following a hearing on 22 October 1993 the President, on
11 November 1993, granted the applicant an injunction on his expulsion
pending the proceedings before the Judicial Division. The President in
his decision had regard, inter alia, to a second declaration issued by
Shanti Bahini and a certified copy of a complaint filed with the Court
of the Upazila Magistrate against the applicant in which he is accused
of having collected funds for Shanti Bahini through extortion of the
person making the complaint and of taking part in the struggle of
Shanti Bahini against the State of Bangladesh. The President considered
that, even though the complaint against the applicant was filed by a
private person, given that the authenticity of these documents had not
been disputed it must be assumed that the interest of the Bangladeshi
authorities in the applicant has been aroused. Taking into account
further the letter of Amnesty International of 24 October 1991, the
President concluded that in all reasonableness the possibility that the
applicant had a well-founded fear of persecution could not be excluded.
 
38. In the meantime, the applicant's lawyer was informed by the
Judicial Division on 28 June 1993 that she had not so far submitted the
grounds for the appeal with the Judicial Division and she was given the
opportunity to comply with this requirement before 29 July 1993. The
applicant's lawyer submitted grounds for the appeal on 20 October 1993,
without providing an explanation for the delay.
 
39. On 7 March 1994 the President of the Administrative Law Division
(Afdeling Bestuursrechtspraak, the successor of the Judicial Division)
in simplified proceedings (vereenvoudigde procedure) declared the
applicant's appeal inadmissible for not having complied with a formal
requirement. The applicant filed an objection (verzet) against this
decision with the Administrative Law Division on 11 March 1994.
 
40. In the hearing on the applicant's objection, which took place on
22 September 1994, the applicant argued that it had not been possible
to submit grounds for the appeal before 20 October 1993 since it had
been necessary, given that the State Secretary for Justice had disputed
the authenticity of documents submitted by him, to try and obtain
further proof of his allegations from Bangladesh and that this had
taken a long time.
 
41. The Administrative Law Division rejected the applicant's
objection on 29 September 1994, holding that he had been given ample
opportunity to submit grounds for his appeal, that he had been informed
of the possible consequences in case of non-compliance with the
requirement that appeals should be motivated and that he had not
requested an extension of the time-limit for the submission of the
grounds.
 
42. Neither the Administrative Law Division nor its President in his
decision of 7 March 1994 examined the merits of the applicant's appeal.
 
43. On 5 December 1994 the applicant filed new requests for asylum
and a residence permit, arguing that the second declaration issued by
Shanti Bahini and the certified copy of the complaint filed against
him, as well as information provided by his lawyer in Bangladesh,
constituted new facts which the State Secretary for Justice had not
been able to take into account when deciding on the applicant's first
requests for asylum and a residence permit.
 
44. The State Secretary for Justice declared the applicant's new
requests inadmissible on 12 January 1995 in accordance with Section 15b
para. 1 (b) of the Dutch Aliens Act (Vreemdelingenwet), as he was of
the opinion that no relevant new facts had been presented.
 
45. Appeal proceedings against the decision of 12 January 1995 are
currently still pending but have no suspensive effect.
 
B. The evidence before the Commission
 
46. The Commission had regard to the following documents, which had
already been produced in the domestic proceedings.
 
 i. Letter of 5 November 1991 from the applicant's lawyer in
 Bangladesh, Mr. J.B. Chakma, to the applicant's lawyer in the
 Netherlands
 
47. Mr. Chakma writes that the applicant's foster father came to see
him recently, saying that the police had come to him and had shown him
a warrant for his son's arrest. Mr. Chakma made enquiries and found out
that there is a case with number C.R. 30/91 pending against the
applicant in the Sub-District Court of Rangamati under Section 384 of
the Bangladesh Penal Code for which the applicant may be sentenced to
three years' imprisonment for extortion. Mr. Chakma further writes that
there is also an allegation of the applicant's involvement in the
insurgent activities of the Shanti Bahini. If this allegation is found
to be well-founded, the applicant may be imprisoned for life under
Section 121 of the Bangladesh Penal Code for waging war against the
State of Bangladesh.
 
48. Mr. Chakma does not rule out that there are other cases pending
against the applicant but explains that pursuant to Section 332 of the
Bengal Records Manual an accused or his lawyer is not entitled to
receive copies of a first information report, an arrest warrant or a
judgment until the accused appears before a court.
 
 ii. Certified copy of undated petition of complaint with number
 C.R. 30/91 filed by Mr. Omar K. with the Court of the Upazila
 Magistrate
 
49. Omar K. states that he is a fish merchant and that he was
compelled to pay illegal taxes to Shanti Bahini to ensure the safety
and security of the fishermen working for him and of his boats. The
applicant used to collect these taxes. Omar K. did not report this
matter to the law enforcing authorities for a long time as he feared
for his life. Ultimately, however, the applicant's involvement with
Shanti Bahini was detected by the law enforcing authorities and they
started looking for the applicant in order to arrest him. It has
further come to Omar K.'s knowledge that the applicant is living in the
Netherlands.
 
50. For these reasons Omar K. lodged his complaint against the
applicant for extortion, illegal collection of money and for
participation in illegal war against the state under Sections 384 and
121 of the Bangladesh Penal Code.
 
 iii. Letter dated 24 October 1991 from Amnesty International in
 the Netherlands to the applicant's lawyer in the Netherlands
 
51. Apart from general information in respect of the situation in the
Chittagong Hill Tracts (see paras. 54-55), the letter states that the
applicant risks being arrested and tortured upon his return to
Bangladesh if it is indeed the case that he provided Shanti Bahini with
information concerning military operations and the military are aware
of this.
 
C. The Bangladeshi background to the present case
 
52. In their submissions the parties have provided the Commission
with some information regarding the Bangladeshi background to the
present case. The Commission has further taken note of publications of
the United States Department of State and Amnesty International.
 
53. The Commission had particular regard to the following documents:
 
 i. Letter dated 24 October 1991 from Amnesty International in the
  Netherlands to the applicant's lawyer in the Netherlands
 
54. The letter states that the Chittagong Hill Tracts is the most
sparsely populated area of Bangladesh and that it was originally
inhabited by mainly Buddhist tribal groups of which the Chakma is the
largest. Subsequent Bangladeshi Governments have encouraged large
numbers of Bengali, who are mainly Muslim, to settle in the area,
causing the original population to fear a loss of identity. Bangladeshi
Governments have also tried forcefully to relocate the tribal
population to so-called "protected villages" near bases of the security
forces, since this was deemed to be in the interest of the social and
economic development of the area but this practice formed part of the
Government's policy against armed resistance at the same time.
 
55. Shanti Bahini, which means "Peace Troops", is the armed wing of
the Jana Sanghati Samiti (JSS, People's Solidarity Association). It was
founded in 1972 at the same time as the JSS following the rejection of
tribal leaders' demands for autonomy by the then Prime Minister. Shanti
Bahini strives for regional autonomy of the Chittagong Hill Tracts and
uses violent methods to achieve its aim. Its members come from
different tribal groups but the Chakmas constitute the majority.
 
 ii. "Country Reports on Human Rights Practices for 1993", United
 States Department of State, February 1994
 
56. The chapter on Bangladesh reports that the Government of
Bangladesh claims to hold no political prisoners. However, some arrests
under the Special Powers Act were for essentially political reasons,
including those of tribals arrested for allegedly aiding and abetting
the insurgent group Shanti Bahini (page 1322).
 
 iii. "Country Reports on Human Rights Practices for 1994", United
 States Department of State, February 1995
 
57. The chapter on Bangladesh reports, inter alia, that in December
1994 the Bangladeshi Government extended an amnesty for Shanti Bahini
insurgents until 31 March 1995 (page 1208).
 
 iv. Amnesty International Report 1996, which covers the period
 January - December 1995
 
58. The chapter on Bangladesh reports, inter alia, that the talks
between the Government of Bangladesh and the tribal representatives in
the Chittagong Hill Tracts failed to bring a political solution to the
long-standing conflict between non-Bengali tribal inhabitants and the
Government of Bangladesh. However, a cease-fire was periodically
extended. The repatriation of some 50,000 tribal refugees living in
camps in India was not restarted. The Government of Bangladesh rejected
demands by the tribal population that their repatriation should be
placed under international supervision (page 89).
 
59. It is furthermore stated that there were continuing reports from
the Chittagong Hill Tracts of ill-treatment, harassment and arbitrary
detention of tribal people with the acquiescence or active
participation of the police (page 89).
 
60. Finally, as regards the general situation in Bangladesh, the
report states that torture and ill-treatment in police custody and in
jails were widespread (page 89).
 
 v. "Country Reports on Human Rights Practices for 1995", United
 States Department of State, April 1996
 
61. The chapter on Bangladesh reports that the army and paramilitary
forces are responsible for security in the Chittagong Hill Tracts,
where a tribal force has waged a low-level insurgency for twenty years.
In 1995 the Bangladeshi Government continued talks with Shanti Bahini's
political wing, the JSS, and the two sides agreed at short, regular
intervals to extend their cease-fire, which generally held throughout
the year, although each side accused the other of extensive violations.
The latest extension of the cease-fire included in the Report was set
to last until 31 March 1995 when talks between the two groups were
scheduled to resume. The Government of Bangladesh also extended the
amnesty for insurgents as long as the dialogue with Shanti Bahini
continued (pages 1294, 1296).
 
62. All sides - indigenous tribes, settlers and security forces -
have accused each other of human rights violations. According to the
Report, it is difficult to verify facts in specific incidents because
Bangladeshi Government travel restrictions, tight security, difficult
terrain, and unsafe conditions created by the insurgency limit access
to the area (page 1296).
 
63. As regards the general situation in Bangladesh the Report states
that the Government of Bangladesh continue to restrict or deny many
fundamental rights (page 1294). Although the Constitution prohibits
torture and cruel, inhuman or degrading punishment, police routinely
employ psychological and physical torture and other abuse during
arrests and interrogations. The Government of Bangladesh rarely convict
and punish those responsible for torture, and a climate of impunity
allows such police abuses to continue (page 1295).
 
D. The Government's reply to the question put by the Commission
 
64. On 7 December 1995 the Commission decided to put the following
question to the Government:
 
 "Is it correct that an amnesty for Shanti Bahini insurgents is
 at present in force in Bangladesh, and, if so, what are the
 implications of this amnesty in relation to the application?"
 
65. In their reply of 7 February 1996 the Government submitted that
the Government of Bangladesh promulgated an amnesty in February 1994
with respect to all refugees returning from Tripura (India) and that
this amnesty was still in force. However, it could not be automatically
assumed that all members of Shanti Bahini may profit from this amnesty,
given the fact that the Government of Bangladesh refer only to clemency
for those Shanti Bahini members who were convicted during the previous
regime.
 
E. Relevant domestic law and practice
 
66. Pursuant to Section 15 of the Aliens Act (Vreemdelingenwet),
foreigners originating from a country where they have a well-founded
reason to fear persecution on account of their religious or politicial
conviction or their belonging to a certain race or a certain social
group may request the Minister of Justice (Minister van Justitie) to
grant them admittance to the Netherlands as a refugee (vluchteling).
 
67. The definition of "refugee" enacted in the Dutch legislation has
been interpreted by the judiciary as referring to the same category of
persons as the definition contained in the Geneva Convention on the
Status of Refugees (cf. Judicial Division Council of State, decision
of 16 October 1980, Rechtspraak Vreemdelingenrecht 1981, 1).
 
68. A request for admittance as a refugee will be rejected as being
inadmissible if the alien has previously requested admittance on the
same grounds and the decision rejecting this earlier request has become
final (Section 15b para. 1 sub (b) Aliens Act).
 
69. A residence permit may be refused on grounds of public interest
(Section 11 para. 5 Aliens Act). In general, an application for a
residence permit in the Netherlands is granted only if the individual's
presence serves an essential national interest or if there are
compelling reasons of a humanitarian nature (klemmende redenen van
humanitaire aard).
 
III. OPINION OF THE COMMISSION
 
A. Complaints declared admissible
 
70. The Commission has declared admissible the applicant's complaints
that his expulsion to Bangladesh would expose him to a real risk of
death, torture or inhuman or degrading treatment.
 
B. Points at issue
 
71. The points at issue in the present case are as follows:
 
- whether the expulsion of the applicant to Bangladesh would be in
  violation of Article 2 (Art. 2) of the Convention;
 
- whether the expulsion of the applicant to Bangladesh would be in
 violation of Article 3 (Art. 3) of the Convention.
 
C. As regards Article 2 (Art. 2) of the Convention
 
72. Article 2 (Art. 2) of the Convention provides as follows:
 
 "1. Everyone's right to life shall be protected by law. No one
 shall be deprived of his life intentionally save in the execution
 of a sentence of a court following his conviction of a crime for
 which this penalty is provided by law.
 
 2. Deprivation of life shall not be regarded as inflicted in
 contravention of this Article when it results from the use of
 force which is no more than absolutely necessary:
 
 a. in defence of any person from unlawful violence;
 
 b. in order to effect a lawful arrest or to prevent the escape
 of a person lawfully detained;
 
 c. in action lawfully taken for the purpose of quelling a riot
 or insurrection."
 
73. The applicant submits that, if he is expelled to Bangladesh, he
is in danger of being killed on account of his activities for Shanti
Bahini.
 
74. The Commission recalls the case-law of the Convention organs
according to which the right of an alien to reside in a particular
country is not as such guaranteed by the Convention. However, the
decision of a Contracting State to expel or extradite a person may give
rise to an issue under Article 3 (Art. 3) of the Convention, and hence
engage the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person
concerned faces a real risk of being subjected to torture or to inhuman
or degrading treatment or punishment in the country to which he is to
be returned (Eur. Court HR, Vilvarajah and Others v. the United Kingdom
judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103).
 
75. The question arises whether analogous considerations apply to
Article 2 (Art. 2), in particular whether this provision can also
engage the responsibility of a Contracting State where, upon expulsion
or other removal, the person's life is in danger.
 
76. The Commission recalls that Article 2 (Art. 2) contains two
separate though interrelated basic elements. The first sentence of
paragraph 1 sets forth the general obligation that the right to life
shall be protected by law. The second sentence of this paragraph
contains a prohibition of intentional deprivation of life, delimited
by the exceptions mentioned in the second sentence itself and in
paragraph 2 (cf. No. 17004/90, Dec. 19.5.92, D.R. 73 p. 155).
 
77. The Commission finds nothing to indicate that the expulsion of
the applicant would amount to a violation of the general obligation
contained in the first sentence of paragraph 1.
 
78. As to the prohibition of intentional deprivation of life, the
Commission does not exclude that an issue might be raised under
Article 2 (Art. 2) in circumstances in which the expelling State
knowingly puts the person concerned at such high risk of losing his
life as for the outcome to be a near-certainty. The Commission
considers, however, that a "real risk" - within the meaning of the
case-law concerning Article 3 (Art. 3) (see paras. 74 and 88) - of loss
of life would not as such necessarily suffice to make expulsion an
"intentional deprivation of life" prohibited by Article 2 (Art. 2),
although it would amount to inhuman treatment within the meaning of
Article 3 (Art. 3) .
 
79. It is not necessary for the Commission to decide in what precise
circumstances the risk of the person being killed might constitute a
violation of Article 2 (Art. 2) in a case like the present one, since
in any event the facts of the case do not disclose such a risk.
 
80. The Commission notes that it appears from his submissions that
the applicant fears that he may die as a result of torture applied to
him in detention. However, for the reasons given in para. 78, the
Commission finds that this issue falls to be considered under Article 3
(Art. 3) (see paras. 82-102). Noting, furthermore, that the offences
of which the applicant is allegedly accused under Sections 384 and 121
of the Bangladesh Penal Law do not carry the death penalty, the
Commission considers that the applicant has not sufficiently
substantiated that his expulsion could constitute a violation of
Article 2 (Art. 2) .
 
 CONCLUSION
 
81. The Commission concludes, unanimously, that in the present case
the expulsion of the applicant to Bangladesh would not be in violation
of Article 2 (Art. 2) of the Convention.
 
D. As regards Article 3 (Art. 3) of the Convention
 
82. Article 3 (Art. 3) of the Convention reads as follows:
 
 "No one shall be subjected to torture or to inhuman or degrading
 treatment or punishment."
 
83. The applicant submits that, if he is expelled to Bangladesh, he
is in danger of being arrested and tortured on account of his
activities for Shanti Bahini. Amnesty International in the Netherlands
have confirmed that there is a real risk of such treatment if it is the
case that the applicant provided Shanti Bahini with information about
troop movements and the Bangladeshi authorities are aware of this. The
applicant argues that he has sufficiently substantiated his involvement
with Shanti Bahini and the Bangladeshi authorities' knowledge of this
involvement, inter alia, by submitting documents whose authenticity has
not been disputed.
 
84. The Government submit that there are no indications militating
against the applicant's expulsion since the applicant has been unable
to demonstrate convincingly that his fear of persecution is well-
founded.
 
85. As regards the legal proceedings in which the applicant is
accused of extortion, the Government contend that the applicant has
failed to substantiate that these proceedings are politically
motivated. In this respect they submit that the applicant maintains
that these proceedings were instituted on the basis of statements of
his foster father, whereas the applicant has also claimed that his
foster father was unaware of his involvement with Shanti Bahini. In the
opinion of the Government, the applicant's fear of ill-treatment is
inspired solely by general remarks made by his acquaintances on the
general methods of interrogation used by the police and in this respect
there is no direct connection with any kind of political motive.
 
86. The Government further argue that at various stages of the
domestic proceedings the applicant made conflicting statements with
regard to his membership of Shanti Bahini. Only at a very late stage
in the appeal proceedings was the applicant able to produce a document
which could be considered to constitute evidence of his membership of
this organisation. This document is the only concrete indication of the
applicant's political affinity with Shanti Bahini. However, the
applicant's relations with Shanti Bahini were only of a very marginal
character. He has not, in the Government's view, provided consistent
information on the subject of the gathering of information for Shanti
Bahini but, in any event, these activities at no time occasioned his
arrest. Furthermore, the protest demonstration in which the applicant
allegedly took part was organised by a legal political party and was
not in any way related to the position of Shanti Bahini.
 
87. The Commission refers to para. 74 above, where it has reiterated
to which extent an expulsion may give rise to an issue under Article 3
(Art. 3) of the Convention.
 
88. In its assessment of the risk of ill-treatment the Commission has
considered the following principles to be relevant:
 
 i. In determining whether substantial grounds have been shown
 for believing that a real risk of treatment contrary to Article 3
 (Art. 3) exists, the Commission will assess the issue in the
  light of all the material placed before it or, if necessary,
 material obtained proprio motu (cf. Eur. Court HR, Cruz Varas and
 Others v. Sweden judgment of 20 March 1991, Series A no. 201, p.
 29, para. 75).
 
 ii. The assessment of the existence of the risk must be made on
 the basis of information currently available (cf. No. 22414/93,
 The Chahal Family v. the United Kingdom, Comm. Rep. 27.6.95,
 currently pending before the Eur. Court HR). The Commission may
 thus have regard to developments which have taken place in
 Bangladesh subsequent to the rejection of the applicant's
 requests for asylum.
 
 iii. Ill-treatment must attain a minimum level of severity if it
 is to fall within the scope of Article 3 (Art. 3). The assessment
 of this minimum is, in the nature of things, relative; it depends
 on all the circumstances of the case (cf. Vilvarajah and Others
 v. the United Kingdom judgment, loc. cit., p. 36, para. 107).
 
89. In order to determine whether the applicant has shown that there
are substantial grounds for believing that he faces a real risk of
being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention upon his return to Bangladesh, the Commission has first
examined the submissions made by the applicant in the course of the
asylum proceedings.
 
90. The Commission notes that according to the applicant he has been
involved with Shanti Bahini since 1974, children being taught from an
early age to be on the alert for any army presence in the area (para.
20). He had begun collecting funds for Shanti Bahini in 1982/1984 and
from 1986 he had supplied this organisation with information about
movements of Government forces (para. 26). The domestic authorities
initially doubted whether the applicant had indeed been a member of
Shanti Bahini as the declaration purportedly issued by this
organisation was found not to be authentic (para. 32). However, the
applicant maintained that this declaration was genuine but that it had
been drawn up by a regional branch of Shanti Bahini (para. 36). He
subsequently submitted a declaration whose authenticity does not appear
to be in dispute between the parties. From the foregoing the Commission
considers it established that the applicant was a member of Shanti
Bahini.
 
91. As regards the activities which the applicant carried out for
Shanti Bahini, the Commission notes that according to the Government
these were of a marginal character. It further notes that in the asylum
proceedings the domestic authorities found that it was not clear how
the applicant could have provided Shanti Bahini with valuable
information concerning troop movements (para. 32).
 
92. The Commission observes that it is difficult to assess the value
of the information allegedly gathered by the applicant. In this respect
the Commission notes that it appears that travel restrictions apply in
the Chittagong Hill Tracts and that this area is subject to tight
security (para. 62). In these circumstances it cannot be excluded that
it would have been easier for the applicant, who was generally thought
to be a son of Bengali settlers (para. 20), to note the destination of
army boats and the location of army camps than for other indigenous
inhabitants of the area.
 
93. It is true that the applicant was never arrested on account of
his activities for Shanti Bahini. However, it is the applicant's
contention that he left the country in order to escape such an arrest.
The applicant submits that he was told that a warrant for his arrest
had been issued after papers, drawn up by him and containing
information about movements of army troops, had been discovered in his
house.
 
94. The Commission notes that the search of the applicant's house
allegedly took place following his participation in a demonstration
which had ended in clashes with the police. The Government appear to
argue that it is unlikely that the authorities went to the applicant's
house in these circumstances given the fact that the demonstration had
been organised by a legal political party and was not related to Shanti
Bahini. The Commission observes, however, that in his first interview
in the asylum proceedings the applicant stated that the demonstration
was directed against the automatic right of certain Bengali settlers
to stand in sub-district elections which frustrated demands for
regional autonomy of the Chittagong Hill Tracts (para. 21). At the
later hearing before the Advisory Committee on Aliens Affairs the
applicant specified that the name of the BNP was used for what had in
reality been a demonstration by Shanti Bahini (para. 28). In view of
the fact that Shanti Bahini is an illegal organisation which strives
for regional autonomy of the Chittagong Hill Tracts (para. 55), the
Commission finds the submissions of the applicant as regards this
demonstration credible.
 
95. The Commission notes that the applicant has not provided any
direct evidence of his allegation that the authorities have issued an
arrest warrant. However, it also notes that according to the
applicant's lawyer in Bangladesh it is not possible under Bangladeshi
criminal law to obtain a copy of an arrest warrant until an accused
appears before a court (para. 48). Furthermore, it is stated in the
petition of complaint filed by Omar K. that prior to making this
complaint the authorities had become aware of the applicant's
involvement with Shanti Bahini and were seeking to arrest him (para.
49).
 
96. As regards the complaint filed by Omar K. against the applicant,
the Commission notes the Government's submission that in the asylum
proceedings the applicant had maintained that the legal proceedings
concerning extortion had been instituted on the basis of statements
made by his foster father. The Commission can find no substantiation
of this claim by the Government in the documents submitted. On the
contrary, it notes that the applicant told the Advisory Committee for
Aliens Affairs that Omar K. had made the complaint and that it was true
that he used to collect money from him for Shanti Bahini.
 
97. The Commission agrees with the Government that the complaint
filed against the applicant was made by a private person who accused
the applicant of the offence of extortion. However, it is clear from
the text of the complaint petition that the applicant is alleged to
have compelled Omar K. to pay illegal taxes to Shanti Bahini (para.
49). Thus, apart from accusing the applicant of extortion under Section
384 of the Bangladesh Penal Code, the complaint also expressly contains
the allegation that the applicant "waged illegal war" within the
meaning of Section 121 of the Bangladesh Penal Code. The Commission
considers that this denotes a political background to the offence. It
appears from the letter written by the applicant's lawyer in Bangladesh
that the offence of waging war against the State of Bangladesh carries
a penalty of life imprisonment (para. 47).
 
98. The Commission considers the applicant's account to be credible
and on the whole consistent. It would agree with the President of the
Regional Court of The Hague (para. 25) that the fact that in his
interview with the Ministry of Justice the applicant did not correctly
state the date of the elections is insufficient to discredit the
account of the applicant. Accordingly, the Commission finds that the
applicant has convincingly shown that he is suspected of being involved
with Shanti Bahini.
 
99. As regards the consequences of this suspicion and the treatment
which the applicant would encounter if expelled to Bangladesh, the
Commission observes in the first place that it appears that from 1994
efforts are being made to resolve the conflict in the Chittagong Hill
Tracts. The Commission notes that in this context the Government of
Bangladesh promulgated an amnesty for Shanti Bahini insurgents
returning from India who were convicted during the previous regime. It
is reported that the amnesty will stay in force as long as the dialogue
between the Government of Bangladesh and Shanti Bahini's political
wing, the JSS, continues. Furthermore, both parties to the conflict
agree at regular intervals to extend a cease-fire (paras. 57, 58 and
61).
 
100. However, the Commission also notes that in 1995 no political
solution had yet been reached. There were still continuing reports from
the Chittagong Hill Tracts of ill-treatment, harassment and arbitrary
detention of tribal people with the acquiescence or active
participation of the police (para. 59). Furthermore, police in
Bangladesh were reported routinely to employ psychological and physical
torture and other abuse during arrests and interrogations (paras. 60
and 63).
 
101. As to the position of the applicant, the Commission notes that
he was not convicted during the previous regime in Bangladesh and it
may therefore not be assumed that he will be able to benefit from the
amnesty, even assuming that it is still in force. Moreover, the
Commission considers the existence of a suspicion of the applicant's
involvement with Shanti Bahini to constitute a special distinguishing
feature in this case (cf. mutatis mutandis the Vilvarajah and Others
v. the United Kingdom judgment, loc. cit., p. 37, para. 112). Having
regard furthermore to the practices of the Bangladeshi police referred
to above, the Commission finds that substantial grounds have been
established for believing that the applicant would be exposed to a real
risk of ill-treatment, contrary to Article 3 (Art. 3) of the
Convention, if deported to Bangladesh.
 
 CONCLUSION
 
102. The Commission concludes, by 26 votes to 5, that in the present
case the expulsion of the applicant to Bangladesh would be in violation
of Article 3 (Art. 3) of the Convention.
 
E. Recapitulation
 
103. The Commission concludes, unanimously, that the expulsion of the
applicant to Bangladesh would not be in violation of Article 2 (Art. 2)
of the Convention (para. 81).
 
104. The Commission concludes, by 26 votes to 5, that the expulsion
of the applicant to Bangladesh would be in violation of Article 3
(Art. 3) of the Convention (para. 102).
 
 
 H.C. KRÜGER S. TRECHSEL
 Secretary President
 to the Commission of the Commission
 
 
 (Or. English)
 
 
 DISSENTING OPINION OF MRS. J. LIDDY, MM. E. BUSUTTIL,
 J.-C. SOYER, K. HERNDL AND E.A. ALKEMA
 
 
 We voted against the majority's finding in para. 102 of the
Report that in the present case the expulsion of the applicant to
Bangladesh would be in violation of Article 3 of the Convention.
 
 According to the applicant he has been involved with the illegal
organisation Shanti Bahini for a long time. He submits that the
Bangladeshi authorities are aware of this involvement following the
discovery in his house of papers drawn up by him. His activities for
Shanti Bahini have also been brought to the attention of the
Bangladeshi authorities by a complaint that a certain Omar K. has filed
against him in which he is accused of having committed the offence of
extortion on behalf of Shanti Bahini (paras. 20, 21, 26, 27 and 29).
 
 We note in the first place that the declaration which the
applicant initially submitted as evidence of his membership of Shanti
Bahini was found by the Dutch authorities not to be authentic (para.
32). Furthermore, in his interview with an official of the Ministry of
Justice, the applicant stated that the search of his house had taken
place after he had been seen to participate in a demonstration
organised by a legal party on 16 April 1990 (para. 21). However, the
aim of this demonstration was connected to sub-district elections which
at that time had apparently already taken place (para. 33). Although
the President of the Regional Court of The Hague in his decision of 14
November 1991 did not rule out the possibility that he applicant had
made a mistake in respect of the date of the demonstration (para. 25),
it does not appear that at any stage of the asylum proceedings the
applicant attempted to correct this mistake. If, on the other hand, it
is to be assumed that the demonstration in fact took place on 16 March
1990, one is surprised to see that the applicant stayed in Bangladesh
for another three and a half months after the demonstration without
experiencing problems from the side of the authorities despite the fact
that, as is submitted by him, they had issued a warrant for his arrest.
 
 As regards the complaint by Omar K. that the applicant extorted
money from him, we draw attention to the fact that Omar K. is alleged
to have filed his complaint against the applicant six years after he
had begun paying the taxes allegedly demanded by the applicant (para.
27). In this respect we also observe that at the hearing before the
Advisory Committee on Aliens Affairs the applicant stated that he went
to Omar K. to collect money with three other people (para. 27). It has
not been submitted that these three other people have also left
Bangladesh or that the Bangladeshi authorities had become aware of
their involvement with Shanti Bahini. In these circumstances it appears
rather unlikely that Omar K., who allegedly feared for his life, would
have filed a complaint against the applicant at a moment when the three
other people involved were still in the area.
 
 We further note the fact that from 1994 onwards efforts were made
to resolve the conflict in the Chittagong Hill Tracts. In this context
the Government of Bangladesh promulgated an amnesty for Shanti Bahini
insurgents who were convicted during the previous regime. It is
reported that the amnesty will stay in force as long as the dialogue
between the Government of Bangladesh and Shanti Bahini's political
wing, the JSS, continues. Furthermore, both parties to the conflict
agree at regular intervals to extend a cease-fire (paras. 57, 58 and
61).
 
 Although in 1995 there were still reports from the Chittagong
Hill Tracts indicating that the situation in the area continued to be
unsettled (paras. 59, 60, 62 and 63), the amnesty combined with the
ongoing dialogue between the political opponents provide a strong
indication that the situation in the area has improved. It is true that
in such an unsettled situation the possibility still could exist that
the applicant could be detained and ill-treated. However, we wish to
recall in this context that a mere possibility of ill-treatment is not
in itself sufficient to give rise to a breach of Article 3 (cf.
Vilvarajah and Others v. the United Kingdom judgment, loc. cit., p. 37,
para. 111).
 
 In these circumstances, we find that no substantial grounds have
been established for believing that the applicant would be exposed to
a real risk of being subjected to treatment contrary to Article 3 of
the Convention if returned to Bangladesh.
 
 Accordingly, in our view, the expulsion of the applicant to
Bangladesh would not be in violation of Article 3 of the Convention.