Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

A list of the applicants is set out in the appendix . The President decided that the applicants’ identities were not to be disclosed to the public ( Rule CARDINAL § CARDINAL of ORG ) . The Government of the GPE were represented by their Agent , Mr R.A.A. PERSON , of ORG .

NORP The facts of the case , as submitted by the parties and in so far as relevant , may be summarised as follows .

NORP The applicant is an NORP national who was born in DATE . He has been residing in the GPE since DATE . He was represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE the applicant entered the GPE and applied for asylum , claiming to fear persecution within the meaning of the DATE LAW ( “ the DATE LAW ” ) . On DATE the immigration authorities held a first interview ( eerste gehoor ) with the applicant about his identity , nationality and travel itinerary . A written record of this interview report was drawn up and the applicant was given an opportunity to submit corrections and additions .

On DATE the immigration authorities held a further interview ( nader gehoor ) with the applicant about his reasons for seeking asylum . A written record of this interview was drawn up and on DATE a lawyer submitted corrections and additions on the applicant ’s behalf .

In his asylum statement , the applicant stated that he was from GPE . After he had graduated from the GPE military academy in DATE , he had worked as teacher at a GPE aviation academy until DATE when he had been transferred DATE he then held the rank of major after periodic promotions – to the NORP security service , the ORG , where he had worked until DATE as chief financial officer of the logistics directorate . His last held rank had been that of colonel . He further stated that he had been a member of the communist ORG of GPE ( the PDPA ) since CARDINAL DATE .

After having lived in hiding from DATE to CARDINAL DATE , he had been arrested by ORG forces operating in PERSON . He had been held captive until DATE when he had been able to escape after the mujahideen had fled from the approaching ORG . After first having hidden in the home of a friend , he had left GPE for GPE . At DATE or DATE , he had heard from a maternal aunt that the ORG had been searching for him . Having not found him at home , the ORG had taken captive his brother , who had been executed by the ORG DATE before the applicant ’s flight to GPE . After having stayed for DATE in GPE , he had travelled by air – via GPE – to the GPE . His wife and their CARDINAL children , the latter born DATE , had remained in GPE and were living with his wife ’s parents .

By a decision of DATE , the applicant was granted asylum in the GPE . Having been granted a provisional residence visa ( machtiging tot voorlopig verblijf ) for the GPE , his wife and CARDINAL children joined him DATE and they were all granted an asylumderived residence permit ( see paragraph CARDINAL below ) .

On DATE a special CARDINAL unit of ORG ( see ORG v. the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , § CARDINAL , DATE ) asked to be provided with the applicant ’s case file in view of a possible application of LAW . The applicant was informed accordingly on DATE and on CARDINAL DATE a supplementary interview ( aanvullend gehoor ) was held with him .

On DATE the Minister for ORG ( Minister PERSON ) notified the applicant of her intention ( voornemen ) to revoke his asylum - based residence permit under LAW . Noting that the applicant had worked DATE as an officer of the KhAD / WAD , his asylum statement had been considered in the light of an official report ( ambtsbericht ) drawn up on DATE by ORG ( GPE PERSON ) on “ ORG in NORP GPE ( DATE ) , AGSA , ORG , ORG and ORG ( PERSON in communistisch GPE ( DATE ) , AGSA , ORG , ORG en WAD ) . On the basis of this report , the GPE immigration authorities had adopted the position that LAW could be applied in respect of virtually every NORP asylum - seeker who had worked during the communist regime for the ORG or its successor the ORG and held the rank of third lieutenant or higher .

NORP The Minister then proceeded to an elaborate analysis of the applicant ’s individual responsibility under LAW , based on the prescribed and so - called “ knowing and personal participation ” test . Noting , inter alia , the applicant ’s steady career path in the ORG , the Minister excluded the possibility of the applicant not having known or not having been involved in human - rights violations committed by the ORG . Relying on the official report of CARDINAL DATE , the Minister underlined the widely known cruel practices of the ORG , its lawless methods , the grave crimes it had committed such as torture and other human - rights violations as well as the climate of terror which it had spread throughout the whole of NORP society . The Minister lastly emphasised that the applicant had done nothing to shirk from his duties for the ORG .

On DATE and DATE , the applicant submitted written comments ( zienswijze ) on the Minister ’s intended decision and , on DATE , he was once more heard before an official board of enquiry ( ambtelijke commissie ) .

On DATE , the Minister revoked the applicant ’s residence permit . The notice of intent of DATE was added to the decision and formed part of it . The Minister did not deviate , in the relevant part , from her earlier conclusions in the notice of intent and went on to confirm them on all points , dismissing the applicant ’s rebuttals . However , as regards LAW , the Minister accepted that it was possible that the applicant would in the then circumstances run a real risk of being subjected to treatment prohibited by this provision if expelled to GPE and that , for this reason , he would not be expelled for the time being . The Minister added that , should the situation in GPE change , a fresh decision on the applicant ’s removal would be taken and that that decision could be appealed against .

The applicant lodged an appeal to ORG ( rechtbank ) of GPE . In its judgment of DATE , ORG allowed the appeal and annulled the impugned decision . Noting that the Minister had acknowledged that in GPE the applicant would be exposed to a risk of treatment proscribed by LAW , it held the Minister should also have examined whether LAW constituted a sustained obstacle to his expulsion to GPE . Consequently , as the Minister ’s examination had been incomplete , it returned the case to the Minister for a fresh decision .

On DATE a supplementary further interview ( aanvullend nader gehoor ) was held with the applicant on the subject of his fear of being subjected to treatment prohibited under LAW if returned to GPE . A written record of this interview was drawn up and on DATE the applicant ’s lawyer submitted written corrections and additions on the applicant ’s behalf .

On DATE the Minister notified the applicant of her renewed intention to revoke his asylum - based residence permit under LAW . She further notified him of her intention to also impose an exclusion order ( ongewenstverklaring ) on him . The applicant submitted written comments on this intended decision on CARDINAL DATE , DATE and DATE . On DATE the applicant was heard before an official board of enquiry .

By a decision of CARDINAL DATE , the Minister of ORG ( Minister PERSON ) revoked anew the applicant ’s asylum - based residence permit , under LAW . In addition , the Minister imposed an exclusion order . As regards LAW , the Minister held that it could not be concluded from the applicant ’s account DATE viewed against the background of the then political and social situation in GPE – that there existed a real and foreseeable risk that the applicant , if returned to GPE , would be subjected to treatment in breach of LAW . As he had only been able to state the possible problems he feared he would experience in GPE in general terms without any specific evidence , the Minister concluded that the applicant had not demonstrated the alleged LAW risk which was found to be based on assumptions by the applicant and not on anything concrete .

On DATE the applicant lodged an objection ( bezwaar ) with the Minister to the decision to impose an exclusion order , and on DATE applied to ORG of The Hague to have issued a provisional measure ( voorlopige voorziening ) allowing the applicant to remain in the GPE pending the determination of his objection . In addition , also on DATE , the applicant lodged an appeal and an accompanying application for a provisional measure with ORG of The GPE against the decision to revoke his asylumbased residence permit under Article ORG

On DATE ORG of The Hague , sitting in PERSON , declared inadmissible the applicant ’s appeal against the revocation of his residence permit . It held that , as long as an exclusion order was imposed on him , the applicant had no legal interest in a determination of the merits of his appeal . It took into account that , in the proceedings on the imposed exclusion order , the applicant ’s arguments based on Articles CARDINAL and CARDINAL of the Convention could be entertained . Although possible , the applicant did not lodge a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) .

Also on DATE a provisional - measures judge ( voorzieningenrechter ) of ORG of GPE , sitting in ‘ ORG , rejected the applicant ’s application for a provisional measure which had accompanied his appeal and , in a separate decision , his application for a provisional measure which had accompanied his objection . In the latter decision , the judge noted that the applicant had admitted that he had worked as an officer of the ORG and held that the Minister had correctly applied LAW in the applicant ’s case . As regards LAW , the judge found that the applicant had not established that he would be exposed to a real risk of being subjected to treatment proscribed by this provision , either on account of the general situation in GPE or his individual circumstances .

On DATE the applicant ’s objection of CARDINAL DATE was rejected by the Deputy Minister of ORG ( ORG ) . On DATE the applicant lodged an appeal with ORG of The Hague . He submitted his written grounds of appeal on DATE and additional grounds of appeal on DATE .

By a judgment of DATE , following a hearing held on DATE , ORG of The Hague , sitting in GPE , dismissed the applicant ’s appeal against the decision of CARDINAL DATE . In so far as the applicant had relied on LAW , it decided DATE as the arguments based on this provision had not been raised in the applicant ’s written grounds of appeal itself but only for the first time during the hearing of DATE not to take them into account .

The applicant ’s further appeal to ORG was declared inadmissible on DATE as , despite having been provided with an opportunity to repair this failure , the applicant had failed to pay the statutorily prescribed court fees ( griffierecht ) within the time - limit fixed for this purpose .

On DATE the applicant was placed in immigration detention , which he unsuccessfully challenged . On DATE he was informed that his removal to GPE had been scheduled for DATE . On DATE , after having been informed that arrangements for an escorted removal were being made , the applicant lodged an objection to an action aimed at his effective removal ( daadwerkelijke uitzettingshandeling ) . Under the terms of section CARDINAL ) of LAW DATE ( Vreemdelingenwet CARDINAL ) , such an action can be equated with a formal decision within the meaning of LAW which can be challenged in administrative - law appeal proceedings . The applicant further lodged an application with ORG of GPE for a provisional measure ( stay of removal pending the determination of his objection ) .

On DATE a provisional - measures judge of ORG of The Hague , sitting in GPE , rejected the application . The judge found , in so far as the applicant had invoked LAW , that it had not been demonstrated that he would risk treatment contrary to this provision in GPE .

On DATE the President of the Section to which the case had been allocated decided to apply Rule CARDINAL of ORG , indicating to the Government that the applicant should not be expelled to GPE for the duration of the proceedings before the ORG .

The applicant ’s objection of CARDINAL DATE was declared inadmissible . An appeal by the applicant against that decision was rejected by ORG of GPE on DATE . It declared the appeal unfounded as the applicant did not risk removal to GPE for as long as the Rule CARDINAL interim measure was in force . No information has been submitted as to whether the applicant has lodged a further appeal with ORG .

The applicant is an NORP national who was born in DATE . He has been residing in the GPE since DATE . He was represented before the ORG by ORG , a lawyer practising in LOC .

On DATE the applicant , his spouse and their CARDINAL children ( born DATE ) applied for asylum in the GPE , claiming to fear persecution within the meaning of the CARDINAL Refugee Convention . In his interviews with the GPE immigration authorities , the applicant stated that he had been a member of the ORG from DATE and that he had worked for the ORG from DATE to DATE ; DATE after Mr DATE who had headed the ORG had been killed . The applicant had simply not returned to work , where he had held the rank of lieutenant - colonel . In DATE , while searching for the applicant , who had been living there at the time and who had been absent at that moment , mujahideen forces had searched the house of his aunt . He had then left GPE and gone into hiding in a village near GPE . He had learned on DATE that his brother had been arrested by the ORG in GPE . The ORG had arrived in GPE on DATE . They had searched for the applicant but had taken his brother prisoner instead ; thus the applicant had managed to flee to GPE , GPE on DATE . After his arrival there , he learned that his brother had been killed . In the period from DATE to DATE , the applicant himself had not been bothered by any of the groups who had been looking for him because he had been living in hiding . The applicant also stated that he had learned that the ORG had been responsible for having tortured people but he had never seen or done this himself .

On DATE the Deputy Minister of ORG rejected the applicant ’s asylum claim for being manifestly unfounded ( kennelijke ongegrondheid ) . The applicant challenged that decision in administrative appeal proceedings in which the final DATE for the applicant negative – decision was taken on DATE by ORG of The Hague , sitting in GPE .

NORP However , the Deputy Minister of Justice did grant the applicant and his family on DATE a conditional residence permit ( voorwaardelijke vergunning tot verblijf ) which was valid for DATE from DATE on the basis of a temporary categorical protection policy ( categoriaal beschermingsbeleid ) in respect of GPE .

On DATE , the situation in GPE not having sufficiently improved , the applicant ’s conditional residence permit was converted into an unrestricted residence permit ( vergunning tot verblijf zonder beperkingen ) . Subsequently , with the entry into force of LAW on DATE , the permit held by the applicant was transformed into an indefinite residence permit for the purpose of asylum ( verblijfsvergunning asiel voor onbepaalde tijd ) .

On DATE the applicant was informed that a special CARDINAL unit of ORG had reviewed his case , that it had been decided to undertake a further investigation and that a supplementary interview would be held with him . Supplementary interviews were held with the applicant on CARDINAL and DATE . A written record of these interviews was drawn up and on CARDINAL DATE a lawyer submitted corrections and additions on the applicant ’s behalf .

On DATE the Minister for ORG notified the applicant of her intention to revoke his asylum - based residence permit under LAW . Noting that the applicant had worked between DATE and DATE as an officer for the ORG , his asylum statement had been considered in the light of an official report , drawn up on DATE by ORG on the security services in communist GPE ( see paragraph CARDINAL above ) .

NORP The Minister then proceeded to an elaborate analysis of the applicant ’s individual responsibility under LAW based on the prescribed and so - called “ knowing and personal participation ” test . The Minister noted inter alia that – on his lawyer ’s advice – the applicant had decided to give no statement during the supplementary interviews about his activities for the ORG . However the applicant did belong to a group of persons in respect of whom LAW was generally applied and he had not demonstrated that in his case a significant exception should be made . The Minister concluded that LAW was to be applied in the applicant ’s case . The Minister took into account the applicant ’s promotions in the ORG and found that the applicant had known or should have known that the ORG had been involved in the systematic commission on a large scale of serious crimes referred to in Article ORG On DATE the applicant submitted written comments on the Minister ’s intended decision .

On DATE the Minister notified the applicant of her supplementary intention ( aanvullend voornemen ) to revoke his residence permit under Article CARDINAL The applicant submitted written comments on the Minister ’s supplementary intended decision on CARDINAL May and DATE .

On DATE the Minister further notified the applicant of her intention also to impose an exclusion order on him . The applicant submitted written comments on this intended decision on DATE .

On CARDINAL DATE the Minister revoked the applicant ’s residence permit and , in addition , imposed an exclusion order . On CARDINAL DATE the applicant lodged an appeal against the revocation of his residence permit and an accompanying application for a provisional measure with ORG of GPE . On DATE , the applicant lodged an objection with the Minister to the decision to impose an exclusion order .

On DATE ORG of GPE , sitting in GPE , declared inadmissible the applicant ’s appeal against the revocation of his residence permit . It held that , as long as an exclusion order was imposed on him , the applicant had no legal interest in a determination of the merits of his appeal . It took into account that , in the proceedings on the imposed exclusion order , the applicant ’s arguments based on LAW could be entertained . Although possible , the applicant apparently did not lodge a further appeal with ORG against the ruling of DATE . Also on DATE , a provisional - measures judge of ORG of The Hague , sitting in GPE , declared inadmissible the applicant ’s application for a provisional measure .

NORP The applicant ’s objection to the decision to impose an exclusion order was dismissed by the Minister on DATE . The applicant ’s appeal to ORG was withdrawn on DATE after he had been informed that the impugned decision had been withdrawn and that a fresh decision would be taken .

In a fresh decision taken on DATE , after the applicant had been heard on his objection before an official board of enquiry , the Deputy Minister of ORG rejected the applicant ’s objection to the decision to impose an exclusion order . In so far as the applicant had invoked LAW , the Deputy Minister held that the applicant had failed to demonstrate that he would be exposed to a real and personal risk of being subjected to treatment contrary to LAW if expelled to GPE . According to an official report of ORG of DATE ( DPV / AM-CARDINAL/CARDINAL/CARDINAL ) not all former members of the ORG and people who had worked for the ORG ran such a risk . Many of them were working for the present Government of GPE , including the security service . The applicant had failed to establish that specific groups , such as the ORG or mujahideen , had been looking for him , or that he would be exposed to an LAW risk on account of him being of NORP ethnicity .

As regards LAW , the Deputy Minister noted that the applicant was living in the GPE together with his spouse and their CARDINAL children who in the meantime had obtained GPE nationality . Consequently , there was “ family life ” within the meaning of DATE . However , taking into account the criteria formulated in the cases of GPE v. GPE ( no . CARDINAL , ECHR CARDINALIX ) and PERSON v. the GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALXII ) , the Deputy Minister found that public interest considerations ( public order , national security , prevention of crime and protection of the rights and freedoms of others ) outweighed the applicant ’s personal interests in enjoying family life in the GPE . On this point , the Deputy Minister considered that it was unlikely that the applicant ’s spouse had not known about the applicant ’s work for the ORG / WAD whose brutal working methods were known to large parts of the NORP population . The Deputy Minister also found no objective obstacles to them exercising their right to family life in GPE , taking into account that the applicant ’s wife and children had not been admitted to the GPE as refugees fearing persecution on the basis of their individual circumstances but entered instead under a temporary categorical protection policy . Furthermore , like the applicant , the applicant ’s spouse came from GPE , spoke the local language and was familiar with NORP society . The Deputy Minister found no reason why she could not follow the applicant to GPE or why their family life could not be carried on in a third country .

On DATE the applicant lodged an appeal and an accompanying application for a provisional measure with ORG of The Hague . On DATE , following a hearing held on DATE , the provisional - measures judge of ORG of The Hague , sitting in GPE , rejected the applicant ’s application for a provisional measure .

On an unspecified date the applicant was placed in immigration detention and his removal to GPE was scheduled for CARDINAL DATE .

On CARDINAL DATE the President of the Section to which the case had been allocated decided to apply Rule CARDINAL of ORG , indicating to the Government that the applicant should not be expelled to GPE for the duration of the proceedings before the ORG .

In its judgment of DATE , following a hearing held on CARDINAL DATE , ORG of The Hague , sitting in GPE , allowed the applicant ’s appeal , annulled the impugned decision of DATE and returned the case to the Deputy Minister for a fresh decision on the applicant ’s objection . On DATE , both the Deputy Minister and the applicant lodged further appeals with ORG .

In its ruling of CARDINAL DATE , ORG rejected the applicant ’s further appeal on summary grounds , holding :

“ What has been raised in the [ applicant ’s ] grievances ... does not provide grounds for annulling the impugned ruling . Under section CARDINAL(CARDINAL ) of LAW , no further reasoning is called for , since the arguments submitted do not raise questions which require determination in the interest of case - law consistency , legal development or legal protection in the general sense . ”

ORG allowed the further appeal lodged by the Deputy Minister , quashed the judgment of DATE and rejected for being unfounded the applicant ’s appeal of CARDINAL DATE . It stated , in particular , that it agreed with the reasoning given by the Deputy Minister for rejecting the applicant ’s arguments under LAW .

No further appeal lay against that decision .

The applicant is an NORP national , who was born in DATE . He has been residing in the GPE since DATE . He was represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE the applicant applied for asylum in the GPE , claiming to fear persecution within the meaning of the CARDINAL Refugee Convention . His spouse and their CARDINAL children ( born in DATE , DATE and DATE ) had already arrived in the GPE and applied for asylum on DATE . On DATE , the applicant ’s spouse and their CARDINAL children were granted a residence permit under the then section CARDINAL(CARDINAL)(c ) of LAW , on the basis of a special protection policy for a specific category of asylum - seekers from GPE .

In his interviews with the GPE immigration authorities , the applicant claimed to fear persecution within the meaning of the CARDINAL Refugee Convention from the side of the ORG , who had detained him for DATE and about whose crimes he had written a book . He further feared persecution on account of his NORP past . He stated that he had been a member of the ORG since DATE or DATE and joined the ORG faction , DATE after having done his military service – he had studied from DATE to DATE at ORG in the former GPE , that he had worked successively as secretary of the provincial committee of GPE , as deputy head of the central council of ORG in GPE , and as Deputy GPE of CARDINAL of the districts in GPE . DATE , he had worked in the private sector as – being a supporter of ORG DATE he had preferred not to work for President ORG . DATE until DATE or DATE he had been commander of a militia brigade of CARDINAL troops under the command of the Mazar - e Sharif garrison . He had been captured by the ORG during a surprise attack in DATE . He had remained in ORG detention until DATE when he had been released after the intervention of an influential uncle . On DATE , he had left GPE for GPE from where he had travelled by air – via GPE – to the GPE .

On DATE the Minister for ORG notified the applicant of his intention to deny the applicant asylum under LAW . Noting that the applicant ’s career path had included the important posts of secretary of the provincial committee of GPE and Deputy GPE of a district in the same province , his asylum statement had been considered in the light of an official report on GPE issued on DATE by the GPE Minister of ORG ( DPC / AM CARDINAL ) as well as a person - specific official report ( individueel ambtsbericht ) ( DPC / AM CARDINAL ) not concerning the applicant but containing information about the provincial committees and secretaries to these committees . According to this information , provincial secretaries were of an equal rank to a governor and were the most important party functionaries of the PDPA at provincial level . They were responsible for all party decisions in a province , including recruiting members , propaganda , intelligence activities within and outside the party , recruiting members for paramilitary activities and contacts with the ORG . In the period of DATE , provincial party secretaries played an active role in suppressing freedom of expression and in detecting and arresting political opponents and having them tortured and executed . Furthermore , according to another person - specific official report ( DPC / AM CARDINAL ) not concerning the applicant himself , deputy governors had to lend support in the detection of political and military opponents of the communist regime , such as by supplying information to the ORG .

Following a lengthy analysis of the applicant ’s individual responsibility under LAW , based on the prescribed “ knowing and personal participation ” test , the Minister concluded that LAW was to be applied in the applicant ’s case . On DATE the applicant ’s lawyer submitted written comments on the Minister ’s intended decision .

In his decision of CARDINAL DATE the Minister denied the applicant asylum under Article CARDINAL The Minister did not deviate , in the relevant part , from his conclusions in the notice of intent of CARDINAL DATE and maintained them on all points . The applicant ’s comments were dismissed as not warranting another finding . However , as regards LAW the Minister accepted that it could not be excluded DATE in view of the positions the applicant had held during the communist regime DATE that if expelled to GPE , he would be exposed to a real risk of being subjected to treatment prohibited by LAW . For this reason , he would not be expelled for the time being . The applicant was , nevertheless , because LAW had been held against him , not eligible for a residence permit .

On DATE the applicant lodged an appeal against that decision with ORG of The Hague . In its judgment of DATE , ORG of the Hague , sitting in GPE , allowed the appeal and annulled the impugned decision . Although it agreed with the Minister ’s decision to hold LAW against the applicant , it also held – referring to a ruling given on DATE by ORG and noting that the Minister had acknowledged the existence of an LAW risk for the applicant in GPE – that the Minister should also have examined whether the applicant had established that LAW constituted a sustained obstacle to his expulsion to GPE . Consequently , the Minister ’s examination had been incomplete .

The applicant ’s further appeal to ORG , which mainly concerned his denial of having been a Deputy GPE , was rejected on DATE . The ORG upheld the impugned judgment of DATE , ruling that a fresh decision had to be taken on the applicant ’s asylum claim .

On DATE the applicant ’s spouse and their CARDINAL children were granted GPE nationality .

On DATE , after a supplementary interview had been held with the applicant on DATE , the Deputy Minister of ORG notified the applicant of her renewed intention – having explained why she did not believe the applicant ’s new submissions to the effect that he had never been a Deputy District Governor DATE to deny him asylum under LAW of the DATE LAW . As regards Article CARDINAL , the Deputy Minister found – having taken into account a paragraph about excommunists in an official country assessment report on GPE released on DATE by ORG ( ORG ) DATE that the applicant had not demonstrated the existence of a risk of treatment in violation of LAW in case of his return to GPE from the side of CARDINAL particular mujahideen commanders who had confiscated houses and land belonging to the applicant , or from the side of mujahideen groups or the ORG . The Deputy Minister concluded that there was no longer an LAW obstacle to the applicant ’s removal to GPE . In so far as the applicant had relied on LAW on the basis of his family life with his spouse in the GPE , the Deputy Minister held that as asylum proceedings offered no scope for such arguments these arguments could not be entertained in the present asylum proceedings .

On DATE the applicant ’s lawyer submitted written comments on the Deputy Minister ’s intended decision .

On DATE the Deputy Minister denied the applicant asylum under Article CARDINAL The Deputy Minister maintained her findings on all points and – reiterating , inter alia , that this had been found established in ORG judgment of DATE which had become final when ORG had upheld that ruling on DATE rejected the applicant ’s claim that he had never been a Deputy GPE . As to the applicant ’s reliance on DATE , the Deputy Minister held that , although the general human - rights situation remained a matter of concern , it was not such that any removal there would necessarily breach LAW . The Deputy Minister further found that the applicant had not demonstrated that , on the basis of his personal circumstances , he would risk treatment proscribed by LAW in GPE . The Deputy Minister also held that the applicant should raise his arguments based on LAW in an application for a residence permit based on his family life with his spouse and his children .

The applicant ’s appeal against that decision was rejected on CARDINAL DATE by ORG of The Hague , sitting in Roermond . It upheld the impugned decision .

The applicant ’s further appeal was rejected on CARDINAL DATE by ORG on summary grounds . No further appeal lay against that ruling .

On an unspecified date the applicant was placed in immigration detention and his removal to GPE was scheduled for DATE .

On DATE the President of the Section to which the case had been allocated decided to apply Rule CARDINAL of ORG , indicating to the Government that the applicant should not be expelled to GPE pending the proceedings before the ORG .

On DATE the Deputy Minister of Justice notified the applicant of his intention to also impose an entry ban ( inreisverbod – see PERSON GPE ( dec . ) , no . CARDINAL/CARDINAL , § CARDINAL , CARDINAL September CARDINAL ) on the applicant . On DATE , following a hearing held on DATE , the Deputy Minister imposed an entry ban on the applicant . An appeal by the applicant against that decision was rejected on DATE by ORG of The Hague . Although possible , the applicant did not lodge a further appeal against this judgment with ORG .

The applicant is an NORP national who was born in DATE . He has been residing in the GPE since DATE . He was represented before the ORG by Mr J. Walls , a lawyer practising in GPE .

DATE . On DATE the applicant as well as his spouse and their CARDINAL daughters ( born in DATE and DATE ) applied for asylum in the GPE . The applicant claimed to fear persecution within the meaning of the CARDINAL Refugee Convention .

In his interviews with the GPE immigration authorities , the applicant stated that he had worked from DATE to DATE for the ORG - security directorate of the ORG in GPE . He had been regularly promoted and his final rank had been CARDINALst lieutenant . His task had been the detection of drugs and weapons trafficking . He had transmitted information to higher officers who had taken further measures . He had also been responsible for combatting the smuggling of explosives . He had taken arrested smugglers to the directorate . He did not know what happened subsequently to these people .

In DATE he had moved to PERSON where he had worked in the administration of the same police department where his brother was already working at that time . After the arrival of the ORG in the area in DATE , his brother had disappeared and had been replaced by a member of the ORG . The applicant had gone into hiding in GPE until he had left on DATE . Whilst he had been in hiding , armed men had entered the home of his wife and their CARDINAL children and enquired about the applicant ’s whereabouts . PERSON , GPE and GPE , the applicant and his family had fled to GPE , GPE from where they had travelled by air to the GPE . The applicant stated that he had fled because he had feared for his life on account of his work and that of his brother .

On DATE the Deputy Minister of ORG rejected the applicant ’s asylum claim under LAW . After having examined the applicant ’s asylum statement in the light of an official report , drawn up on DATE by ORG , on “ ORG in NORP GPE ( DATE ) , AGSA , ORG , ORG and ORG ( see paragraph CARDINAL above ) , the Deputy Minister proceeded to an elaborate analysis of the applicant ’s individual responsibility under LAW , based on the prescribed “ knowing and personal participation ” test , and concluded that LAW was to be applied in the applicant ’s case . In reaching this conclusion , the Deputy Minister took into account , inter alia , the applicant ’s voluntary choice to join the ORG , his career in this service and the nature of his work . The Deputy Minister considered that the systematic and large - scale commission of serious human - rights violations by the ORG had been common knowledge well before the applicant had joined this service and that therefore he could not have been ignorant of those acts as had been averred by him . The Deputy Minister further rejected the applicant ’s arguments under LAW .

On DATE the applicant lodged an objection to that decision . On DATE he was heard on his objection before an official board of enquiry . On DATE the Minister for ORG rejected the objection , having found nothing in the applicant ’s submissions warranting another conclusion than the one set out in the impugned decision . However , as it could not be ruled out that the applicant , given his work in GPE , would run a real risk of treatment contrary to LAW if he were expelled to GPE , the Deputy Minister further indicated that for the time being the applicant would not be removed to that ORG . However , this did not render him eligible for a nonasylumbased residence permit , including a residence permit on account of the duration of the proceedings on his asylum claim ( tijdsverloop in de asielprocedure ) as the application of LAW constituted a contraindication .

By a decision of DATE the applicant ’s spouse was granted an asylum - based residence permit and their CARDINAL daughters ( CARDINAL of whom had been born after the applicant ’s arrival in the GPE , in DATE and DATE ) were granted dependent residence permits . No information has been submitted as to whether that decision was based on the individual asylum statement of the applicant ’s spouse or under a particular protection policy .

On DATE the applicant lodged an appeal with ORG of The GPE against the decision concerning his asylum claim and an objection with the Minister against the decision that he was not eligible for a non - asylum - based residence permit . On DATE the Minister rejected the objection . On DATE the applicant also lodged an appeal against the latter decision with ORG of The Hague .

In its judgment of CARDINAL DATE , ORG of The Hague , sitting in GPE , allowed the appeals and annulled the CARDINAL impugned decisions . Although it agreed with the Minister ’s decision and pertaining reasoning to apply LAW in the applicant ’s case , it also held – referring to CARDINAL rulings given on DATE by ORG ( ORG . CARDINAL and DATE ) and noting that the Minister had acknowledged the existence of an LAW risk for the applicant in GPE – that the Minister should also have examined whether the applicant had established that LAW constituted a sustained obstacle to his expulsion to GPE . It further found that the Minister had unjustly based the decision concerning the non - asylum - based residence permit on section QUANTITY of LAW ( Vreemdelingenbesluit DATE ) . Consequently , the Minister ’s examination had been incomplete . Accordingly it annulled the decisions of DATE and DATE and ordered the Minister to take fresh decisions within DATE .

DATE . In a fresh decision taken on DATE the Minister rejected the applicant ’s objections of CARDINAL DATE and DATE . Referring to the reasons given in the judgment of CARDINAL DATE , the Minister again rejected the applicant ’s asylum claim regarding Article CARDINAL As regards LAW , the Minister found that that it could not be concluded from the applicant ’s asylum statement – viewed against the background of the current political and social situation in GPE – that there existed a real and foreseeable risk that if returned to GPE the applicant would be subjected to treatment in breach of LAW . The Minister considered , inter alia , that the applicant had not encountered any tangible problems in GPE or FAC during the reign of the mujahideen . The Minister further considered that while the problems which had caused the applicant to flee GPE had only begun after the arrival of the ORG in GPE , the ORG were no longer in a position of power in GPE . The Minister further found that , on the basis of the decision to apply LAW to his case , the applicant was not eligible for a non - asylum - based residence permit on the basis of the so - called DATE policy ( driejarenbeleid ) set out in paragraphs CCARDINAL/CARDINAL.CARDINAL and QUANTITY of LAW DATE ) . Under this DATE policy a residence permit could be granted if an application for such a permit had not been determined within DATE for reasons not imputable to the petitioner and provided that there were no contraindications such as , for instance , the application of Article CARDINALF.

On DATE the applicant lodged an appeal with ORG of The Hague . In its judgment of DATE , ORG of The Hague rejected the appeal in so far as it was directed against the decision to deny the applicant asylum under LAW and the finding that there was no LAW obstacle to the applicant ’s removal to GPE . However , to the extent that the appeal was directed against the decision that the applicant was not eligible for a non - asylum - based residence permit , it found that the Minister had unjustly failed to hear the applicant on his objection . Accordingly , it annulled this part of the decision of CARDINAL DATE and ordered the Minister to take a fresh decision on the applicant ’s objection of DATE .

On DATE , after the applicant had been heard on DATE before an official board of enquiry in respect of his objection of DATE , the Minister rejected this objection . On DATE , the Minister notified the applicant of her intention to impose an exclusion order on him . The applicant did not avail himself of the possibility to file written comments on this intention . On DATE the applicant lodged an appeal with ORG of The GPE against the Minister ’s decision to reject his objection of DATE .

By a decision of CARDINAL DATE the Minister imposed an exclusion order on the applicant . On DATE the applicant lodged an objection to that decision with the Minister . As this objection did not have suspensive effect , the applicant also lodged on DATE an application for a provisional measure with ORG of The Hague . On DATE ORG of The GPE rejected the applicant ’s application for a provisional measure , finding , inter alia , that DATE did not prevent the applicant ’s removal to GPE .

On DATE ORG of The Hague declared inadmissible the applicant ’s appeal of DATE against the Minister ’s decision to reject his objection of CARDINAL DATE .

On DATE the Deputy Minister of ORG rejected the applicant ’s objection of DATE to the decision to impose an exclusion order . The Deputy Minister rejected the applicant ’s arguments under LAW for being unsubstantiated and with reference to the considerations and the conclusion on this point in the previous rulings given in the applicant ’s case . As regards the applicant ’s arguments under LAW , the Deputy Minister considered , taking into account the criteria formulated in the cases of GPE ( cited above ) and PERSON v. the GPE ( no . PERSON , § DATE , DATE ) , that Article CARDINAL did not prevent the applicant ’s removal to GPE either . On this point , the Deputy Minister found , inter alia , that the applicant had substantial links with GPE , where he had been born and raised and where he had lived for CARDINAL years , and that there was no appearance of an objective obstacle to carrying on the family life at issue in GPE or in another country .

The applicant lodged an appeal against that decision with ORG of The Hague . On DATE ORG allowed the appeal but also held that its legal consequences were still to stand . On DATE the applicant lodged a further appeal . On DATE , pending these further appeal proceedings , the applicant was informed that the impugned decision of DATE had been withdrawn and that a fresh decision would be taken on his objection of CARDINAL DATE .

In the meantime , on DATE , the applicant had lodged a fresh application for asylum on the basis of alleged newly emerged facts and circumstances . He had been interviewed on this application DATE . This fresh application had been rejected by the Deputy Minister of Justice on DATE . The applicant had lodged an appeal DATE , but had withdrawn it on DATE for reasons undisclosed .

On DATE the applicant ’s wife and their CARDINAL daughters were granted GPE nationality .

Furthermore , on DATE the applicant informed the ORG that his removal had been scheduled for DATE and applied for an interim measure under Rule CARDINAL of ORG . On DATE the Acting President of the Section to which the case had been allocated decided to apply Rule CARDINAL of ORG , indicating to the Government that the applicant should not be expelled to GPE for the duration of the proceedings before the ORG .

On DATE a son was born to the applicant and his spouse .

On DATE , after the applicant had been heard on DATE before an official board of inquiry , the Minister for ORG took a fresh decision on the applicant ’s objection of CARDINAL DATE and again rejected it . With reference to the findings in respect of this provision made in CARDINAL decisions and CARDINAL judgments given previously in the applicant ’s case , the Minister rejected the applicant ’s arguments under LAW , holding that it had not been demonstrated that the applicant , if returned to GPE , would risk treatment in violation of LAW .

In respect of the applicant ’s arguments under LAW , the Minister reiterated that LAW had been applied in respect of the applicant and that he thus represented a danger to public order . It should therefore be determined whether the interference with the applicant ’s rights under LAW was necessary and justified in a NORP society . For this purpose the general interest was to be weighed against the applicant ’s personal interest in staying in the GPE to enjoy his family life with his spouse and their children . The Minister concluded that the interference at issue , that is to say the imposition of the exclusion order , was justified under the terms of LAW in that it was provided for in domestic law provisions and was necessary for the protection of public order and the prevention of crime . As regards the competing interests , the Minister – taking into account the guiding principles as formulated in the ORG ’s judgments in the cases of LOC ( cited above ) and PERSON ( cited above ) – held that public interest considerations in excluding the applicant from the GPE outweighed the applicant ’s personal interests in being enabled to carry on his family life in the GPE . He noted that the applicant had been born and raised in GPE and had lived there for DATE . This supposed the existence of ties with GPE and thus the possibility to build up a life there again . Even if the applicant did not have a social network at present in GPE , it would be easy for him to build up such a network after his return there . The Minister further considered that , even assuming that there would be an objective obstacle to the applicant ’s spouse and their children enjoying their family life with the applicant in GPE , it did not appear that it there would be an objective obstacle to him carrying on this family life in a third country . It had appeared from the hearing held on DATE that the applicant had done nothing to explore that possibility . The applicant ’s spouse and children were free to visit the applicant abroad or to settle with him in another country . The Minister therefore concluded that Article CARDINAL did not prevent the applicant ’s expulsion from the GPE .

An appeal by the applicant against this fresh decision was allowed on DATE by ORG of The Hague . It annulled the decision and ordered the Minister to take a fresh decision . A further appeal by the latter to ORG was allowed on CARDINAL DATE . The court quashed the impugned judgment of CARDINAL DATE and rejected the applicant ’s appeal against the decision of DATE . No further appeal lay against that decision .

A general overview of the relevant domestic law and practice in respect of asylum proceedings , exclusion orders and enforcement of removals has been set out in PERSON the GPE ( cited above , § § DATE ) .

Pursuant to the strict separation under the provisions of LAW between an asylum application and a regular application for a residence permit for another purpose than asylum , arguments based on LAW can not be entertained in asylum proceedings – unless they concern an application for an asylum - derived residence permit ( verblijfsvergunning met een afgeleide asielstatus ) for refugeefamily reunification ( nareisvergunning – see PERSON v. the GPE ( DATE . ) , no . CARDINAL , § § DATE , CARDINAL DATE ) – but should be raised in , for instance , proceedings on a regular application for a residence permit ( see PERSON v. the GPE and GPE and CARDINAL other applications DATE . ) , no . DATE , § CARDINAL , CARDINAL DATE ; J. v. the GPE ( DATE . ) , no . CARDINAL , § CARDINAL , DATE ; and GPE v. the GPE ( dec . ) , no CARDINAL/CARDINAL , § DATE , DATE ) or in proceedings concerning the imposition of an exclusion order ( see PERSON v. GPE ( cited above ) , and PERSON v. the GPE , no . CARDINAL , DATE ) or proceedings on an entry ban ( see , on the entry ban , ORG v. the GPE ( dec . ) , no . CARDINAL , § § DATE ) .

NORP The relevant domestic policy , law and practice in respect of asylumseekers from GPE in respect of whom LAW was found to be applicable have been summarised in ORG v. the GPE , cited above , § § DATE .

The most recent official country assessment report on GPE was drawn up by ORG in DATE . The relevant part of this report reads :

“ CARDINAL.CARDINAL.CARDINAL ( Former ) communists

Under ‘ potential risk profiles’ in ORG [ for assessing the international protection needs of asylum - seekers from GPE , DATE ] no information is given about persons who identify with the NORP ideology ( or who are suspected thereof ) . In the part ‘ LAW from LOC the ORG does give information about former members of the ORG and ORG .

Many former members of ORG of GPE ( PDPA ) and former employees of the former intelligence services the ORG and the ORG are currently working for ORG . They have , for example , been appointed as governors of provinces , occupy high positions in the army [ or ] the police , or are mayors . Some former ORG members have founded new parties .

In so far as is known , ex - communists and their relatives have nothing to fear from the ... Government .

It therefore can not be said that the group of ( former ) communists as a whole has reasons to fear being in GPE . It depends on each individual person whether someone has or has not reason to fear being in GPE , and this also applies to former employees of the ORG . ”

Article CARDINAL of the DATE Refugee Convention reads :

“ The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that :

( a ) he has committed a crime against peace , a war crime , or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes ;

( b ) he has committed a serious non - political crime outside the country of refuge prior to his admission to that country as a refugee ;

( c ) he has been guilty of acts contrary to the purposes and principles of ORG . ”

On DATE the ORG High Commissioner for Refugees ( ORG ) issued the “ ORG . CARDINAL : Application of the Exclusion Clauses : Article CARDINAL of the DATE Convention relating to LAW . They superseded “ LAW on their LAW ( ORG , DATE ) and “ Note on the Exclusion Clauses ” ( ORG , CARDINAL DATE ) and are intended to provide interpretative legal guidance for governments , legal practitioners , decision - makers and the judiciary , as well as ORG staff carrying out refugee status determination in the field . These guidelines state , inter alia , that where the main asylum applicant is excluded from refugee status , his or her dependants will need to establish their own grounds for refugee status . If the latter are recognised as refugees , the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee ( paragraph CARDINAL ) .

An overview of the relevant guidelines and country operations profile on GPE of the ORG High Commissioner for Refugees ( “ the ORG ” ) have recently been summarised in ORG v. the GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

The most recent update of the “ ORG from GPE ” was released on DATE ( “ the DATE LAW ” ) and replaced the DATE Guidelines . As in the latter guidelines , the DATE ORG do not include persons who worked for the ORG or the police during the former communist regime in the CARDINAL cited potential risk profiles , but again state that , as regards LAW , careful consideration needs to be given in particular to , inter alia , former members of the armed forces and the intelligence / security apparatus , including the ORG agents during the former communist regimes under ORG , PERSON , PERSON , and ORG , as well as former officials of those communist regimes .

In DATE ORG ( “ the EASO ” ) released the country of origin information report “ GPE Update Security Situation ” . This report , covering the period between CARDINAL DATE and DATE , is an update of a previous report released by ORG in DATE . It provides , inter alia , a general description of the security situation in GPE , as well as a description of the security situation for each of the CARDINAL provinces and GPE . The report states , inter alia :

“ The general security situation in GPE is mainly determined by the following CARDINAL factors : The main factor is the conflict between ORG ( ORG ) , supported by ORG ( IMF ) , and LAW ( AGEs ) , or insurgents . This conflict is often described as an ‘ GPE . The other factors are : criminality , warlordism and tribal tensions . These factors are often inter - linked and hard to distinguish . Several sources consider the situation in GPE to be a non - international armed conflict ...

DATE and DATE , the ORG recorded CARDINAL security - related incidents relevant to the work , mobility and safety of civilian actors , a number consistent with the records for the same reporting period in DATE . Nevertheless , according to the ORG , during DATE , the conflict grew in intensity and geographical scope , with a spike in high - profile attacks in GPE . In DATE , ORG reported that security conditions had worsened across GPE due to increased ORG attacks and renewed fighting . ”

ORG for ORG ( “ the ORG ” ) reported in Humanitarian Bulletin GPE of CARDINAL DATE on humanitarian access and aid - worker incidents in the following terms :

“ The total number of incidents relating to NGOs , ORG and ORG from DATE to CARDINAL DATE stands at CARDINAL which is slightly DATE . To date in DATE , national and international NGOs are the most directly affected with CARDINAL incidents . CARDINAL aid workers have been killed , CARDINAL injured and CARDINAL abducted .

The number of security incidents across the country is consistent with DATE numbers , but there has been a significant increase in armed clashes as a percentage of overall security incidents . This has manifested itself by way of increased large scale ground engagements which have led to a reduction in access to many areas and for longer periods of time . ”

The report of the Secretary - General of ORG on “ The situation in GPE and its implications for international peace and security , DATE ” ( CARDINAL ) of DATE reads under the heading “ Security ” :

“ CARDINAL . The security situation in GPE deteriorated , with ORG operations at an unprecedented high rate since DATE . Armed clashes increased by MONEY in DATE compared with DATE and were higher for DATE compared with DATE . In DATE , the highest number of armed clashes was reported since DATE , a period that coincided with the presidential elections .

Notwithstanding the increase in armed clashes , overall security incidents decreased . DATE and CARDINAL May , ORG recorded CARDINAL security incidents , representing a decrease of MONEY compared with DATE , attributed primarily to a reduction in incidents involving improvised explosive devices . The southern , south - eastern and eastern regions continued to account for the majority of incidents ( MONEY ) . Consistent with previous trends , armed clashes accounted for the majority of security incidents ( MONEY ) , followed by improvised explosive devices ( MONEY ) . Targeted killings decreased : from CARDINAL DATE to CARDINAL May , CARDINAL assassinations , including failed attempts , were recorded , representing a decrease of CARDINAL per cent compared with DATE . A total of CARDINAL suicide attacks were reported , compared with QUANTITY in the same period in DATE , as well as several high - profile incidents . The latter included a complex attack against the consulate of GPE in GPE on DATE , an attack against the residence of the acting Director of ORG in the city of GPE on DATE and the targeted killing of CARDINAL high - ranking army commanders on CARDINAL and DATE in GPE and PERSON provinces , respectively . The ORG claimed responsibility for those CARDINAL attacks .

Insurgent attacks increased notably after the beginning of the ORG DATE offensive , ORG . In its declaration of DATE launching the DATE campaign , the ORG pledged large - scale attacks against ‘ enemy ORG alongside tactical attacks and targeted killings of military commanders . Unlike in DATE , the movement did not threaten civilian government officials specifically . In DATE of the offensive , the number of ORG - initiated attacks almost doubled compared with DATE , resulting in the highest number of armed clashes recorded for DATE . Since the beginning of the offensive , the ORG has launched CARDINAL attacks on district administrative centres , including a concerted push on the city of GPE . ORG repelled the vast majority of those attacks . The offensive gained further momentum with the completion of the seasonal poppy harvest in GPE early in DATE , resulting in increased clashes in the southern region . The ORG also concentrated efforts to seize strategically important parts of GPE along the GPE - Tirin FAC and retook control of strategic areas of GPE , where security forces had conducted a clearance operation in DATE .

ORG remained under pressure , in particular in GPE , GPE , GPE , GPE , GPE , NORP and NORP provinces , and were reinforced by NORP special forces and international military assets . Notwithstanding intensified efforts to strengthen army units , in particular in GPE , significant shortcomings remained in the areas of command and control , leadership , logistics and overall coordination . In DATE , reports indicated rising casualties among the security forces . The sustainability of the forces remains a challenge in the light of high attrition rates . Even though recruitment was on target , re - enlistment rates remained particularly low and needed to be increased to compensate for other losses . In DATE , army troop levels and ORG numbers reached CARDINAL per cent and MONEY respectively , of the levels projected for DATE . Some progress was made in increasing air capacity , and the air force carried out a limited number of air missions .

Discussions on the presence of ORG beyond DATE and future funding arrangements for ORG continued ahead of the NATO summit in DATE . The Secretary - General of ORG , PERSON , visited the city of GPE on DATE , during which he met with the President and the Chief Executive of GPE , PERSON , and reaffirmed the commitment of ORG to GPE . On DATE , ORG members and donor representatives discuss financial support for ORG up to DATE in a meeting in GPE of the board of ORG . On DATE in GPE , ministers for foreign affairs of participating countries agreed on the extension of the Mission beyond DATE .

Other armed groups maintained small presences on NORP territory , including ORG in northern GPE and ORG in GPE and GPE ( ISIL - KP ) in the east . Since my previous report , operations by ORG , supported by international military air strikes , further reduced the presence of ORG in GPE , where the group also faced pressure from the ORG . This contributed to ORG establishing a small , secondary presence in neighbouring GPE and GPE provinces in search of safe havens and recruitment .

A total of CARDINAL recorded incidents had an impact on ORG , including CARDINAL cases of intimidation , CARDINAL incidents relating to an improvised explosive device and CARDINAL criminal - related incidents . On DATE , a guard contracted by ORG was killed in the city of GPE and another guard and a ORG staff member were injured in a shooting incident , the circumstances of which are under investigation . ”

NORP ORG , Information Centre Asylum and Migration : Briefing Notes ( DATE ) reported on GPE :

“ Security situation

In a report submitted to ORG , ORG notes a deterioration of security in view of the reduced international military presence and the weakness of the NORP forces . While the NORP government retained control of most city centres , the ORG continued to expand their influence , especially in rural areas , the report says , demonstrating their resilience by attacks in GPE , GPE , PERSON and other northern provinces as well as in GPE .

Increasingly , the ORG insurgents were launching major attacks in urban centres , the report continues . From DATE , a total of CARDINAL civilian casualties including CARDINAL deaths were documented , the report went on .

In GPE , CARDINAL rebels and CARDINAL members of the security forces have died in a clash between the NORP military and ORG rebels . The fights started on DATE , when CARDINAL of ORG insurgents attacked a military post in GPE district .

Attacks

On DATE , an attack on a member of the GPE provincial council left CARDINAL people wounded , among them the council member and his body guard .

On DATE , a bomb planted in a motorbike killed CARDINAL people and injured another CARDINAL in a market in northern GPE .

ORG fighting

On DATE , a spokesman of the governor of NORP province stated that CARDINAL militants were killed in fights between a ORG splinter faction supporting dissident PERSON , who is opposing the appointment of PERSON Akhundzada as the new ORG leader , and followers of GPE . The clash did not result in any civilian casualties , it was stated .

Bus passengers kidnapped

On DATE , ORG insurgents ambushed a series of buses and other vehicles in GPE district ( southern GPE ) and abducted CARDINAL passengers . Shortly afterwards , they let those go who were travelling with their families . In an internet message , the ORG stated that they had detained ‘ CARDINAL suspected ORG . If these turned out to be working for the government , they would be submitted to the NORP emirate ’s courts , the ORG said . NORP elders intervened and succeeded in releasing all but CARDINAL hostages . ”


Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

A list of the applicants is set out in the appendix . All applicants are represented by PERSON . PERSON and PERSON , lawyers practising in GPE .

NORP The facts of the cases , as submitted by the applicants , may be summarised as follows .

On DATE Mr PERSON was stopped by police for riding a bicycle in the dark without showing lights . From an identity check it emerged that an alert had been entered in ORG by GPE for the purpose of his arrest for surrender . He was provisionally arrested ( voorlopig aangehouden ) and taken into police custody ( inverzekeringstelling ) for DATE .

Questioned by a police officer DATE , PERSON consented to his surrender to GPE without delay .

On DATE Mr PERSON appeared before an investigating judge ( rechter - commissaris ) . He again consented to his immediate surrender to GPE .

On DATE the investigating judge ordered PERSON taken into initial detention on remand ( bewaring ) . The order was in the following terms :

“ Orders the requested person to be taken into detention on remand and notes that the requested person shall be released as soon as the detention on remand has lasted DATE and the NORP arrest warrant has not yet been received . ”

On DATE the public prosecutor ( officier van justitie ) sought the prolongation by ORG ( rechtbank ) of PERSON detention on remand , surrender having not yet taken place .

A hearing was held DATE . PERSON , represented by counsel , argued that “ special circumstances ” within the meaning of section CARDINAL(CARDINAL ) of LAW ( PERSON ) justifying the prolongation requested did not exist . He took the view that if the NORP authorities did not come to fetch PERSON , then the GPE authorities should effect the transfer to GPE themselves . In his submission , an extension of the time - limits set out in LAW of DATE on the NORP arrest warrant and the surrender procedures between ORG Member GPE was permitted only if both the issuing and the executing Member GPE were prevented by force majeure from effecting the surrender . Should ORG be hesitant to follow this view , he asked ORG to put a preliminary question to ORG of ORG ( CJEU ) under LAW on the Functioning of ORG ) .

ORG gave its decision DATE . It ordered Mr PERSON to be taken into extended detention on remand ( gevangenhouding ) for a further ten days from DATE and declined to put any preliminary question to the ORG . Its reasoning included the following :

“ The public prosecutor has argued that the lack of any earlier transport from GPE constitutes force majeure for him and that he is not under any obligation to take the requested person to GPE .

ORG takes the view that the public prosecutor is tasked with the actual surrender . For the actual surrender he is dependent on the NORP authorities as regards transport . The issuing state , being the party with an interest in the surrender , is responsible for the actual transport . If the actual transport can not take place within the time - limit set by law , then this constitutes force majeure for the public prosecutor . The public prosecutor is under no obligation to take a requested person to the country that issued the NORP arrest warrant .

The time - limits in LAW covering actual surrender are intended to increase the efficiency and speed of the surrender procedure . This is in the first place an interest of the authorities concerned and additionally an interest of the requested person himself . The interest of the authorities concerned is not harmed since this has come into being by mutual agreement [ sic ] .

The interest of the requested person is harmed . The extent of the harm is however limited since actual surrender can actually take place in short order , namely on DATE , and can be justified by what has been considered above .

In view of the reasons outlined above ORG sees no reason to put any preliminary questions . ”

No appeal was possible against this decision .

PERSON was surrendered to the NORP authorities at GPE ( GPE ) Airport on DATE .

On DATE Mr Milkovics was provisionally arrested on the basis of an alert entered in ORG by GPE for the purpose of his arrest for surrender . He was taken into police custody for DATE .

NORP The public prosecutor received the relevant NORP arrest warrant on DATE . The following day , CARDINAL DATE , he ordered the extension of the police custody until such time as ORG would give a decision concerning detention on remand . At the same time , however , he ordered the conditional suspension ( schorsing ) of the police custody .

On DATE ORG gave a decision ordering PERSON extended detention on remand , which at the same time it conditionally suspended until the date of its eventual decision on the permissibility of surrender .

On DATE ORG gave a decision finding Mr Milkovics ’s surrender to GPE permissible . Mr Milkovics was taken into detention on remand DATE .

On DATE ORG gave a decision extending Mr Milkovics ’s detention on remand by a further DATE starting on DATE . The decision noted that actual surrender had not yet taken place because of “ special circumstances ” .

On DATE Mr Milkovics lodged a request for the suspension of his detention on remand . He stated that he wished to be surrendered to GPE as soon as possible so as to prove his innocence ; at all events , even in the event of a conviction the sentence would be unlikely to be more than a suspended prison sentence or a community service order given his clean criminal record and the ( in his submission ) relatively minor nature of the charges against him . Should ORG be minded not to accede to this request , he suggested that a preliminary question be put to the ORG .

ORG gave its decision on DATE after having held a hearing . It dismissed the applicant ’s request for suspension of his detention on remand . Its reasoning included the following :

“ Section CARDINAL of LAW allows the suspension of detention on remand for the purpose of surrender until the moment at which ORG has permitted the surrender . Only in exceptional circumstances does ORG consider itself empowered to order the suspension of the detention on remand for the purpose of surrender after that decision ; an example is the situation in which continued detention would lead to a violation of LAW . ORG takes the view that no exceptional circumstances are apparent that ought to lead to the suspension of the detention on remand for the purpose of surrender of the requested person . In so finding , ORG notes that the requested person has spent DATE in detention and that actual surrender to the NORP authorities is expected to take place very soon , no later than DATE . ORG therefore can not see that continuing the detention in remand for the purpose of surrender constitutes a violation of LAW already now .

Nor does ORG see any need to consider the request for suspension of the detention according to the standards applicable to the situation in which ORG has not yet given its decision . Unlike counsel , ORG does not consider the limitation of the possibility of suspension for the purpose of surrender to the period preceding the decision , as laid down in section CARDINAL of LAW , to run counter to LAW DATE on the NORP arrest warrant and the surrender procedures between Member GPE . That LAW provides that the person requested may be released provisionally at any time in conformity with the domestic law of the executing Member ORG , provided that the competent authority of the said Member ORG takes all the measures it deems necessary to prevent the person absconding [ emphasis in the original ] . Clearly the GPE legislature has considered the restriction of the possibilities of suspension referred to above necessary to prevent the requested person absconding . Nor is it the case that LAW rules out the possibility of releasing the requested person from the decision until actual surrender takes place . It is , after all , within the power of the public prosecutor to release the requested person at any time if there should be occasion to do so . Likewise , if the public prosecutor does not seek the prolongation of the detention on remand for the purpose of surrender or if ORG dismisses a request for its prolongation , then the requested person will be released provisionally until actual surrender takes place .

There is accordingly no necessity to construe [ section CARDINAL of LAW ] in the light of LAW , nor is there a need for any preliminary questions [ to the CJEU ] . ”

Mr Milkovics lodged an appeal against this decision with ORG ( gerechtshof ) .

Mr Milkovics was surrendered to the NORP authorities at FAC on DATE , having remained in detention until then .

ORG held a hearing in the case on DATE . Mr Milkovics was represented by his counsel . Relying on NORP v. the GPE , no . CARDINAL/CARDINAL , ORG DATE , his counsel asked that the appeal be declared admissible despite Mr Milkovics ’s surrender DATE . He challenged the decision of ORG , arguing that LAW and CARDINAL § CARDINAL of LAW acted to override section CARDINAL ) of LAW and introduce a subsidiarity test . Pointing out that no appeal lay to the decision of ORG , he again asked for a preliminary question to be put to the ORG .

ORG dismissed PERSON appeal on DATE . Its reasoning included the following :

“ Given section CARDINAL of the LAW suspension of detention on remand for surrender purposes is possible only as long as no judicial decision has been taken about allowing surrender . This rule admits of exceptions only if there is an exceptional situation , in which there is a danger that the rights guaranteed by LAW may be violated . There is no such situation in the present case , considering also the brief period that the requested person has spent in detention for surrender purposes in the GPE .

The system of LAW and [ LAW DATE on the NORP arrest warrant and the surrender procedures between Member GPE ] is based on the assumption that the orders of the judicial authorities of the Member GPE of ORG are to be trusted as if they were decisions of the requested Member ORG itself .

The requested person can exercise his rights based on the ORG and related arrangements without limitation in GPE and will have to approach the NORP authorities for that purpose . There is no point to any further assessment by the GPE courts in the given circumstances .

In view of the above , there is no need to put any preliminary questions . ”

No appeal was possible against this decision .

On DATE Mr ORG , having been spotted fishing , was asked to show his fishing licence . From an identity check it emerged that an alert had been entered in ORG by GPE for the purpose of his arrest for surrender . He was provisionally arrested and taken into police custody for DATE .

On DATE the investigating judge ordered Mr ORG taken into initial detention on remand . The order was in the following terms :

On DATE the investigating judge gave a decision conditionally suspending Mr ORG ’s detention on remand .

On DATE ORG gave a decision ordering Mr ORG taken into extended detention on remand , which at the same time it conditionally suspended until DATE of its eventual decision on the permissibility of surrender .

NORP The public prosecutor received the relevant NORP arrest warrant on DATE .

On DATE ORG gave a decision giving permission for Mr ORG ’s surrender to GPE in respect of CARDINAL charge but refusing such permission in respect of a plurality of other charges . Mr ORG was taken back into detention on remand DATE .

On DATE the public prosecutor sought the prolongation by ORG of Mr ORG ’s detention on remand , surrender having not yet taken place .

A hearing was held DATE . Mr ORG , represented by counsel , argued that on the same grounds as in the case of PERSON ( see paragraph CARDINAL above ) that “ special circumstances ” within the meaning of section CARDINAL(CARDINAL ) of LAW justifying the prolongation requested did not exist and asked ORG to put a preliminary question to the ORG under LAW . In the alternative , he argued that there was no danger of his absconding since only one charge remained for him to face in GPE , a minor one at that , and he had built a stable existence in the GPE with his family .

ORG gave its decision DATE . It ordered the prolongation of Mr ORG ’s detention on remand for DATE from DATE and declined to put any preliminary question to the ORG . Its reasoning on this point was identical to that in the case of PERSON PERSON ( see paragraph CARDINAL above ) . It also found that there were no special circumstances justifying suspending the detention . No appeal was possible against this decision .

Mr ORG was surrendered to the NORP authorities at GPE ( GPE ) Airport on DATE .

The following provisions of positive ORG law are relevant to the case :

“ ORG of ORG shall have jurisdiction to give preliminary rulings concerning :

( a ) the interpretation of the Treaties ;

( b ) the validity and interpretation of acts of the institutions , bodies , offices or agencies of the ORG ;

Where such a question is raised before any court or tribunal of a Member ORG , that court or tribunal may , if it considers that a decision on the question is necessary to enable it to give judgment , request the ORG to give a ruling thereon .

Where any such question is raised in a case pending before a court or tribunal of a Member ORG against whose decisions there is no judicial remedy under national law , that court or tribunal shall bring the matter before the ORG .

If such a question is raised in a case pending before a court or tribunal of a Member ORG with regard to a person in custody , ORG of ORG shall act with the minimum of delay . ”

“ Everyone has the right to liberty and security of person . ”

“ CARDINAL . Any limitation on the exercise of the rights and freedoms recognised by this LAW must be provided for by law and respect the essence of those rights and freedoms . Subject to the principle of proportionality , limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the ORG or the need to protect the rights and freedoms of others . ... ”

“ When a person is arrested on the basis of a NORP arrest warrant , the executing judicial authority shall take a decision on whether the requested person should remain in detention , in accordance with the law of the executing Member ORG . The person may be released provisionally at any time in conformity with the domestic law of the executing Member ORG , provided that the competent authority of the said Member ORG takes all the measures it deems necessary to prevent the person absconding . ”

“ CARDINAL . NORP The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned .

He or she shall be surrendered DATE after the final decision on the execution of the NORP arrest warrant .

NORP If the surrender of the requested person within the period laid down in paragraph CARDINAL is prevented by circumstances beyond the control of any of GPE , the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date . In that event , the surrender shall take place within DATE of the new date thus agreed .

NORP The surrender may exceptionally be temporarily postponed for serious humanitarian reasons , for example if there are substantial grounds for believing that it would manifestly endanger the requested person ’s life or health . The execution of the NORP arrest warrant shall take place as soon as these grounds have ceased to exist . The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date . In that event , the surrender shall take place within DATE of the new date thus agreed .

Upon expiry of the time limits referred to in DATE , if the person is still being held in custody he shall be released . ”

In its judgment of DATE in Case CARDINAL/CARDINAL ( GPE CILFIT and ORG ) , ORG of ORG ( hereafter ECJ ) responded to a request from ORG for a ruling as to whether the third paragraph of LAW ( now LAW ) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt . In this connection , the ECJ found it necessary to define the meaning , for purposes of Community law , of the expression “ where any such question is raised ” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before it . The ECJ observed the following :

“ ... it must in the first place be pointed out that Article CARDINAL does not constitute a means of redress available to the parties to a case pending before a national court or tribunal . Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article CARDINAL .

Secondly , it follows from the relationship between the second and third paragraphs of Article CARDINAL that the courts or tribunals referred to in the third paragraph have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of community law is necessary to enable them to give judgment . Accordingly , those courts or tribunals are not obliged to refer to the court of justice a question concerning the interpretation of community law raised before them if that question is not relevant , that is to say , if the answer to that question , regardless of what it may be , can in no way affect the outcome of the case . ”

and gave the following interpretation of LAW :

“ The third paragraph of LAW must be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required , where a question of Community law is raised before it , to comply with its obligation to bring the matter before ORG , unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by ORG or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt . The existence of such a possibility must be assessed in the light of the specific characteristics of Community law , the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the ORG . ”

In Case CARDINAL/CARDINAL ORG v ORG con l’Estero [ DATE ] ECR CARDINAL , paragraph CARDINAL ; Case C-CARDINAL/CARDINAL ORG PERSON [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ; and Case C-CARDINAL/CARDINAL , PERSON , ORG and ORG ASBL ( ORG ) , paragraph CARDINAL , the ECJ held :

“ [ A ] national court or tribunal is not empowered to bring a matter before the ORG by way of a reference for a preliminary ruling under LAW unless a dispute is pending before it in the context of which it is called upon to give a decision which could take into account the preliminary ruling . Conversely , ORG has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been terminated . ”

In its relevant part , LAW provides as follows :

“ CARDINAL . At the request of the public prosecutor , ORG can order the person requested detained on remand at its hearing .

NORP Before terminating its examination of the case in the hearing ORG shall decide ex officio ... on the extended detention on remand of the person requested if he is in initial detention on remand or police custody . ”

“ Detention ordered pursuant to section CARDINAL shall – without prejudice to the possibility of further detention on other grounds – be terminated as soon as :

a. it is so ordered by the public prosecutor or ORG , whether ex officio or at the request of the person requested or his counsel ;

b. it has lasted DATE from DATE of ORG decision , unless ORG has prolonged the detention on the application of the public prosecutor in the meantime . ”

“ CARDINAL . Prolongation of the detention as referred to in section CARDINAL under b can be for no longer than DATE .

NORP In derogation from the first paragraph , the detention can be prolonged for DATE at a time if :

a. in addition , extradition has been requested , or surrender by ORG or another international tribunal , and the competent Minister has not yet decided on those requests ;

b. surrender has been permitted , but actual surrender has not proved possible within the time - limit set for that purpose .

NORP The person requested shall be given the opportunity to be heard about the application for prolongation of his detention . ”

“ CARDINAL . NORP The person requested shall be surrendered as soon as possible after the decision in which surrender has been permitted in whole or in part , but no later than ten days after the date of this decision . The public prosecutor shall decide the time and place after consultation with the issuing judicial authorities .

NORP If owing to special circumstances the surrender of the requested person can not take place within the time - limit set in the first paragraph , a new date shall be determined by mutual agreement . In that event , the surrender shall take place within DATE of the new date thus agreed .

NORP The surrender may exceptionally be postponed as long as serious humanitarian reasons prevent the surrender , in particular as long as travel would be irresponsible in view of the state of health of the person requested . The requesting judicial authority shall be informed of this without delay . The public prosecutor shall , after consulting the requesting judicial authority , determine the time and place at which the surrender can take place . In that event , the surrender shall take place within DATE of the new date thus determined .

NORP The detention of the person requested shall be terminated after the time - limits set out in the first through third paragraphs have ended . ”

“ CARDINAL . In cases in which a decision on detention can or must be taken pursuant to this LAW , an order can be given for such detention to be conditionally deferred or suspended ( voorwaardelijk opgeschort of geschorst ) until the moment of the decision of ORG in which the surrender is permitted . The conditions to be set may purport only to prevent the requested person ’s absconding . ... ”


DAS UNIVERSELLE LEBEN ALLER KULTUREN WELTWEIT E.V. v. GERMANY

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The applicant , PERSON . ORG , is a NORP association , which has its seat in GPE . It was represented before the ORG by Mr PERSON , a lawyer practising in GPE .