The applicant, Iraqi national, was rejected the application for international protection in the Netherlands and submitted a fourth asylum application. He based his last request on the fact that he is Muslim and atheist, statements deemed credible by the State Secretary, but the application was rejected because the State Secretary considered that the applicant did not make it plausible that he has a well-founded fear of persecution upon return on basis of his apostasy and atheism. The Court of the Hague, although the appeal was submitted too late by the applicant, it allowed it based on the Bahaddar judgment and circumstances, namely that under special facts and circumstances relating to the individual case, there might be a need, in order to prevent a violation of Article 3 ECHR, to disapply a national procedural rule. The Court of the Hague annulled the decision contested by the applicant and referred the case for re-examination by the State Secretary.

The Court of the Hague noted that from the documents submitted by the applicant it results that simply being an atheist and apostate Muslim in Iraq can cause problems for family members, the population and militias. Moreover, in the view of the Court of the Hague, although the applicant has not been practicing Muslim for ten years and has not encountered serious issues as a result does not justify the conclusion that he does not fear treatment contrary to the Article 3 ECHR. The Court of the Hague considered that the State Secretary has to further investigate factually on the situation of atheist and apostates Muslims returning to Iraq.

The State Secretary appealed against this decision and the Council of State rejected it as not founded.

The Council of State first thoroughly analysed when an administrative court must assess whether Bahaddar circumstances arise in a case and when, for this reason, a national procedural rule must not be applied. The Council of State first gave a detailed overview of jurisprudence and examples on the non-application of a national procedural rule due to the Bahaddar circumstances. It clarified that the prohibition that no one should be subjected to torture or to inhuman or degrading treatment or punishment is absolute, meaning that no national procedural rule should stand in the way of that prohibition. The term 'national procedural rules' should be interpreted broadly, and the administrative court must disapply those procedural rules when there is a clear threat of violation of the Article 3 ECHR.

In order to assess whether there are Bahaddar circumstances, an applicant has to argue and unmistakably submit evidence leading to the conclusion that the prohibition on refoulement as laid down in Article 3 ECHR would be violated. In order to determine whether Bahaddar circumstances arise requires an independent assessment is to be conducted by the administrative court on the basis of what has emerged during the entire procedure. The burden of proof lies with the applicant to inform and adduce evidence on the Bahaddar circumstances, then the State Secretary carries out the assessment.

The following principle applies: national procedural rules have to be observed even if an applicant invokes Article 3 of the ECHR. If a national procedural rule precludes the substantive treatment of what a third country national has argued and submitted, the administrative court will assess, on the basis of what has emerged during the entire procedure, whether the relevant national procedural rule should remain inapplicable.

In the assessment of the present case, the Council of State referred to the EASO/EUAA 'Country Guidance: Iraq. Common analysis and guidance note' of January 2021 to note that here is a possibility that apostate Muslims and atheists will experience problems, but that this depends on the family or the environment in which that person is located. According to the EASO report, the likelihood of problems depends on the extent to which a foreign national will openly express his or her beliefs, and factors such as region of origin, family, ethnic background and gender are relevant.

The Council of State considered that the EASO report covers generally situations about openly admitting atheism without distinction between actively propagating atheism and situations such as in the present case, where the applicant would only speak about his atheism when asked. The Council of State considered, as the Court of the Hague assessed, that without further factual investigation by the State Secretary into the circumstances for atheists and apostate Muslims upon their return to Iraq, it cannot properly assess whether Bahaddar circumstances arise in this case. The case was referred back to the State Secretary for re-examination in light of the abovementioned.