ANNOTATIONS OF PROF. MR. P. BOELES ON REK
DECISION ON THE SISON CASE
Published in Jurisprudentie Vreemdelingenrecht, 12 Nov. 1997,
pp. 46-47.
1. This ruling departs somewhat from the two published rulings
of the REK on Art. 3 EVRM, the right to stay and the public order.
It concerns a special asylum case with a long prehistory, which
is referred to in RV [Rechtspraak Vreemdelingenrecht] 1995, 2,
as the Sison case. In the decision of the Judicial Department
of the Raad van State reprinted there, the following determinations
were made:
(a) Art. 1F Refugee Convention was not applicable, since there
were insufficient indications for the judgment that Sison had
committed the serious crimes meant therein;
(b) Sison had a well-grounded fear for persecution in the meaning
of the Refugee Convention;
(c) The recognized interest of the Dutch state in the integrity
and credibility, especially in its relation to other states, can
not lead to the justified invocation of the policy freedom which
Art. 15 par. 2 Aliens Law gives to deny entry as refugee for weighty
reasons derived from general interest.
The Department based the absence of freedom of policy to refuse
refugee status on the fact that for other reasons it was already
established that the State Secretary of Justice did not have that
freedom. Refusal of stay to Sison would namely, according to the
Department, be in violation of Art. 3 EVRM. One of the members
of the chamber of the Judicial Department of the Raad van State
who took this decision was mr. P. van Dijk, now beside his function
as Raad van State member is also judge at the European Court for
Human Rights.
At a study day of the Institute for Immigration Law at the Rijksuniversiteit
in Leiden in February 1997, mr. van Dijk said that in the Chahal
case (RV 1996, 20) he saw a confirmation of the ruling of the
Judicial Department in the Sison case and a distancing from the
legal consideration 89 in the Soering case, where there was still
a weighing of interests of the state and the individual.
"This concurrence ("overeenstemming", harmony,
consonance) between the Court and the Judicial Department, I ascertain
indeed with a feeling of content because the weighing possibility
pleaded for by the defendant in the Sison case with a view of
the public order or the security of the state would lead to a
serious emptying out ("een ernstige uitholling") of
the prohibition laid down in Art. 3." (Beweging en Beheersing,
Immigratie in de jaren negentig, [Movement and Domination, Immigration
in the 90s], Publication series, Institute for Immigration Law,
no. 1, Sdu 1997, p.39)
2. The turn that the REK now has given in the case is difficult
to reconcile with the Raad van State decision. According to the
court, the State Secretary may refuse entry as refugee on the
basis of the weighty reasons of general interest mentioned in
Art. 15 par. 2 Vw (Aliens Law), if the State Secretary only refrains
from expulsion.
I cannot read anything else than this in the legal considerations
14 and 15. Of this and similar approaches, Spijkerboer and Vermeulen
(Vluchtelingenrecht, NCB 1995, p. 216) say: "Such interpretations
completely strip Art. 15 par. 2 of its meaning and fail to appreaciate
the intention of the legislator:. Already in 1977, the Raad van
State nullified a decision which stated that entry on the basis
of Art. 15 Vw was supposed not to be needed because [permit to]
stay was already granted for other reasons (see J. Hoeksema, Tussen
vrees en vervolging [Between fear and persecution], Assen 1982,
p. 136).
Subsequently the REK states that the State Secretary is free
to subject Mr. Sison to a protection which I have described as
second-level protection in my note under REK, AWB 97/4705 VRWET.
Looking for the weighty reasons that the REK invokes, one finds
in the ruling nothing else then the "weighty interest of
the Dutch State, namely the integrity and credibility of the Netherlands
as a sovereign state, especially in relation to its responsibility
to other states" (legal consideration 15, to which also legal
consideration 20 refers); extremely cryptic and therefore unfortunately
hardly convincing. In the decision of the Department, reprinted
in RV 1995, 2, the interest that the state invokes in connection
with Art. 15 par. 2 Vw is somewhat more precisely described as
"ascertained indications of personal contacts between appellant
and representatives of terrorist organisations".
Indications, no matter how serious, are however no more than
suspicions. The Court thus appears to be of the opinion that the
State Secretary of Justice would be free to subject someone to
a second-level protection on the basis of suspicions. An unsatisfactory
decision.
3. The decisions of the REK pertaining to the wife and son of
Sison are not printed here. Summaries of the rulings are in NAV
1997, p. 749.