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A. v. THE NETHERLANDS - 4900/06 [2010] ECHR 1130 (20 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1130.html
Cite as:
[2010] ECHR 1130,
(2014) 59 EHRR 33,
59 EHRR 33
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THIRD
SECTION
CASE OF A. v. THE NETHERLANDS
(Application
no. 4900/06)
JUDGMENT
STRASBOURG
20 July
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of A. v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 29 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 4900/06) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Libyan national, Mr A.
(“the applicant”), on 1 February 2006.
The
applicant was represented by Mr P.J. Schüller and
Mr M. Ferschtman, both lawyers practising in Amsterdam. The
Dutch Government (“the Government”) were represented by
their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign
Affairs.
The
applicant alleged that his expulsion to Libya would violate his
rights under Article 3 of the Convention and that he did not have an
effective remedy within the meaning of Article 13 of the Convention
taken together with Article 3.
On
2 February 2006, the President of the Chamber decided to apply Rule
39 of the Rules of Court, indicating to the Government that it was
desirable in the interests of the parties and the proper conduct of
the proceedings not to expel the applicant to Libya pending the
proceedings before the Court, and to give notice of the application
to the respondent Government. The President further decided of his
own motion not to disclose the applicant's name (Rule 47 § 3 of
the Rules of Court) and that the documents deposited with the
Registry which could lead to the applicant's identification should
not be made accessible to the public (Rule 33 § 1).
Having
noted the observations submitted by the respondent Government and the
observations in reply submitted by the applicant (Rule 54 §
2), as well as the third-party comments received from the Governments
of Lithuania, Portugal, Slovakia and the United Kingdom and from the
non-governmental organisations the AIRE Centre, Interights (also on
behalf of Amnesty International Ltd., the Association for the
Prevention of Torture, Human Rights Watch, the International
Commission of Jurists, and Redress), Justice and Liberty (Rule 44 §
2), and the parties' comments on those third-party submissions (Rule
44 § 5) – the Court declared the application admissible on
17 November 2009.
The
applicant and the Government each filed further written observations
on the merits (Rule 59 § 1). The applicant also filed claims for
just satisfaction on which the Government commented (Rule 60).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1972 and lives in Eindhoven.
A. The proceedings on the applicant's asylum request
The
applicant entered the Netherlands on 25 November 1997 and applied for
asylum. In the course of interviews held with immigration officials
on 25 November 1997 and 16 December 1997, he stated that he feared
persecution in Libya for his involvement since 1988 in a clandestine,
nameless opposition group and its activities which consisted in
holding regular meetings, distributing pamphlets and informing people
about the Libyan regime by inter alia distributing
publications by the Libyan resistance abroad. This group had begun
having problems with the Libyan authorities as from late 1992 or
early 1993 when a first group member was arrested. More arrests of
group members followed and when virtually all his friends in this
group had been arrested and detained, the applicant decided to flee
Libya which he actually did by the end of 1994 without, however,
having himself encountered any problems with the Libyan authorities.
He had left the country via an official Libyan border crossing-point
and holding his own, authentic passport. After his departure for
Saudi Arabia, the applicant's younger brother and brother in-law
were arrested. After a brief illegal stay in Saudi Arabia where he
lost his passport, the applicant travelled on to Yemen where he
stayed for about eight months, mostly in an aliens' detention centre.
Attempts by the Libyan consul in Yemen to have him expelled to Libya
failed due to the applicant's refusal to cooperate. In August 1996,
after having obtained a forged Libyan passport and released from
detention in Yemen, the applicant travelled to Sudan. After the
Libyan authorities had sent officials to Sudan in order to trace
Libyans in Sudan who were listed as opponents of the Libyan regime
and to seek the transfer of these persons to Libya, the applicant no
longer felt safe in Sudan and travelled to the Netherlands.
On
27 February 1998, the Deputy Minister of Justice (Staatssecretaris
van Justitie) rejected the applicant's asylum request. The Deputy
Minister did not find it established that the applicant had attracted
the negative attention of the Libyan authorities. His alleged
membership of a nameless opposition group had remained
unsubstantiated and he had failed to give clear information about the
group's aims and manner in which it sought to realise these aims.
Even assuming that the applicant was associated with this group, he
had never held any function of significance within this group and had
never encountered any personal problems with the Libyan authorities.
On this point, the Deputy Minister noted that about 10 15
persons belonging to that group had allegedly been arrested and
detained in 1993 whilst the applicant had stayed in Libya until the
end of 1994 without having encountered any problem. Moreover, he had
left Libya holding an authentic passport in his own name. The Deputy
Minister therefore concluded that, even assuming that the applicant
had been involved in this opposition group, this had not become known
to the Libyan authorities. The Deputy Minister further did not find
it established that the applicant, if expelled to Libya, would be
exposed to a real and personal risk of being subjected to treatment
in breach of Article 3 of the Convention. On 3 March 1998 the
applicant filed an objection (bezwaar) against that decision
with the Deputy Minister.
As
the applicant's objection was denied suspensive effect as regards his
expulsion from the Netherlands, he applied on 7 April 1998 for a stay
of expulsion by way of a provisional measure (voorlopige
voorziening) with the Regional Court (rechtbank) of The
Hague sitting in 's-Hertogenbosch.
In
support of his objection, the applicant submitted two statements
issued by “The National Front for the Salvation of Libya”
(“NFSL”) dated 1 February 1998 and 15 June 1998,
respectively. According to these statements, the applicant was a
sympathiser of this organisation and had disseminated NFSL materials
in Libya.
On
5 October 1998 the Deputy Minister dismissed the applicant's
objection. On 22 October 1998 the applicant filed an appeal against
this decision with the Regional Court of The Hague.
On
9 November 1998 the President of the Regional Court of The Hague
sitting in 's Hertogenbosch granted the applicant's request for
a provisional measure and ordered the stay of the applicant's removal
until four weeks after the determination of the applicant's
objection.
On
30 December 1998, the applicant was informed that – having
noted the ruling of 9 November 1998 – the Deputy Minister had
withdrawn the decision of 5 October 1998 and would take a fresh
decision. Consequently, the applicant withdrew his appeal of 22
October 1998.
On
15 June 1999, the Netherlands Ministry of Foreign Affairs started an
investigation into the NFSL and the reliability of documents issued
by this organisation. The results of this investigation were set out
in an official report (ambtsbericht), issued by the Ministry
of Foreign Affairs on 20 August 1999.
In
a fresh decision taken on 30 December 1999, the Deputy Minister of
Justice again dismissed the applicant's objection of 3 March 1998,
finding that the NFSL statements could not serve in substantiation of
the applicant's account. The Deputy Minister did not find it
established that the applicant had attracted the negative attention
of the Libyan authorities or that he had found himself in an acute
flight situation. The Deputy Minister further found no reasons for
accepting the applicant's argument that his expulsion to Libya would
be in violation of his rights under Article 3 of the Convention.
On
10 February 2000, the applicant filed an appeal against this decision
with the Regional Court of The Hague as well as a request for a
provisional measure.
By
letter of 16 April 2003, the Minister of Immigration and Integration
(Minister voor Immigratie en Integratie; the successor to the
Deputy Minister of Justice) withdrew the decision of 30 December
1999. As the applicant was allowed – pursuant to the ruling of
9 November 1998 – to remain in the Netherlands pending the
proceedings on his objection, he withdrew his appeal and request for
a provisional measure filed on 10 February 2000.
On
16 June 2003, after the applicant had been heard on his objection
before an official commission (ambtelijke commissie), the
Minister rejected the applicant's objection of 3 March 1998. In this
decision, the Minister further decided not to grant the applicant ex
officio a residence title on account of the duration of the still
pending proceedings on his asylum request (tijdsverloop in de
asielprocedure).
On
17 June 2003, the applicant filed an appeal with the Regional Court
of The Hague against the rejection of his objection of 3 March 1998
as well as a request for a provisional measure.
On
the same date, the applicant filed an objection with the Minister
against the decision of 17 June 2003 not to grant him a residence
title on account of the length of the determination of his asylum
request, as well as a request with the Regional Court for a
provisional measure.
On
10 July 2003, the Minister informed the applicant that he would not
be expelled pending the decision on the provisional measure request
he had filed in the context of his asylum application.
On
17 July 2003, the Minister withdrew the decision of 16 June 2003 on
the applicant's asylum request. Consequently, the President of the
Regional Court of The Hague sitting in Middelburg declared
inadmissible the applicant's provisional measure request filed in the
context of these asylum proceedings and, pursuant to the ruling of 9
November 1998, the applicant was allowed to remain in the Netherlands
pending the proceedings on his objection of 3 March 1998.
On
28 January 2004, after the applicant had been heard on 8 December
2003 before an official commission and had submitted a statement
dated 25 November 2003 from the Geneva-based Libyan League for Human
Rights (“LLHR”), according to which the applicant was a
member of this organisation and for that reason would be persecuted
and imprisoned, possibly executed, if he were to be expelled to
Libya, the Minister rejected the applicant's objections of 3 March
1998 and 17 June 2003.
On
29 November 2004 the Regional Court of The Hague sitting in
Middelburg accepted the two separate appeals filed by the applicant
and remitted the case to the Minister for fresh decisions.
On
17 May 2005, the applicant was heard before an official commission on
his objections of 3 March 1998 and 17 June 2003. In the course of
this hearing, the applicant was informed of the Minister's intention
(voornemen) to impose an exclusion order (ongewenstverklaring)
on him, as he was considered to pose a threat to national security
(see below §§ 40 and 53). At his lawyer's advice, the
applicant did not wish to react to that intention during this
hearing.
In
a fresh decision given on 3 November 2005, the Minister again
rejected the applicant's objections of 3 March 1998 and 17 June 2003.
Referring to an individual official report on the applicant drawn up
on 9 February 2005 by the General Intelligence and Security
Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”),
the Minister noted that the AIVD considered the applicant to
constitute a danger to national security (see below § 40).
Noting that, after having been granted access to the underlying
materials of the AIVD individual official report of 9 February
2005, the Immigration and Naturalisation Department (Immigratie-
en Naturalisatiedienst) of the Ministry of Justice had concluded
on 6 October 2005 that this report, both as regards its content
and procedure, had been drawn up in a careful manner and that it
provided insight in a logical, transparent manner, the Minister
accepted the correctness of the individual official report of 9
February 2005. Consequently, in accordance with the case-law of the
Administrative Jurisdiction Division (Afdeling
Bestuursrechtspraak) of the Council of State (Raad van State),
the finding that the applicant represented a danger to national
security was, in itself, a sufficient ground for rejecting his asylum
request and to deny him a residence permit on account of the duration
of the proceedings on his asylum request. Moreover, the Minister
found no indications in the case that in Libya the applicant would
have to fear persecution within the meaning of the 1951 Convention
Relating to the Status of Refugees. Following an extensive
examination of the applicant's account, the Minister did not find it
established that the applicant had attracted the negative attention
of the Libyan authorities on grounds of his alleged involvement with
the NFSL or his involvement with and marginal activities for the LLHR
in the Netherlands. The Minister further did not find it established
that – on account of the criminal proceedings taken against the
applicant in the Netherlands (see below §§ 41-45) or his
very marginal opposition activities – the applicant would be
exposed in Libya to a real risk of being subjected to treatment
prohibited under Article 3 of the Convention.
On
8 November 2005, the applicant filed two separate appeals (one
against the refusal to grant him asylum and the other one against the
refusal to grant him a residence title on account of the duration of
the still pending asylum proceedings) and, having been informed that
he was not allowed to await the outcome of those appeals in the
Netherlands, also two separate requests for a provisional measure
with the Regional Court of The Hague. In addition, as the Minister
had decided on 4 November 2005 to impose an exclusion order
(ongewenstverklaring) on the applicant against which the
applicant had filed an objection (see below § 56), he also
applied for a provisional measure allowing him to remain in the
Netherlands pending the determination of this objection by the
Minister.
In
the proceedings on these appeals and requests for a provisional
measure and with the parties' consent, the provisional-measures judge
(voorzieningenrechter) of the Regional Court of The Hague
sitting in Zwolle was granted access to the materials underlying the
AIVD individual official report of 9 February 2005 without these
materials being disclosed to the applicant.
On
1 February 2006, the provisional-measures judge of the Regional Court
of The Hague sitting in Zwolle rejected the applicant's three
requests for a provisional measure as well as his two appeals on the
merits against the Deputy Minister's decision of 3 November 2005.
After having verified personally and accepted that the conclusions
drawn in the AIVD official report of 9 February 2005 were
sufficiently supported by the underlying materials, the
provisional-measures judge accepted the Minister's conclusion that
the applicant posed a threat to the national security and could for
that reason be denied a Netherlands residence title, either for
asylum or on account of the duration of the proceedings on his asylum
request.
The
provisional-measures judge further accepted the reasons given by the
Minister for concluding that it had not been established that the
applicant, if expelled to Libya, would be exposed to a risk of being
subjected to treatment in breach of Article 3 of the Convention on
account of his alleged involvement with the NFSL or his involvement
with and activities for the LLHR in the Netherlands. Further noting
that, when the applicant was presented at the Libyan mission for the
purposes of obtaining travel documents (see below § 35), the
Netherlands authorities had only provided this mission with extremely
neutral information about him, the provisional-measures judge also
did not find it established that the applicant would be exposed to
such a risk in Libya for being an expelled unsuccessful asylum
seeker.
As
to the applicant's further argument that, given the publicity
attracted by the criminal proceedings taken against him before the
Rotterdam Regional Court (see below §§ 43-45), the Libyan
authorities had become aware of the nature of the suspicions having
arisen against him in the Netherlands and that he would also for that
reason risk treatment contrary to Article 3 of the Convention in
Libya, the provisional-measures judge held, referring to the general
principles under Article 3 of the Convention as defined by the Court
in its judgments in the cases of Vilvarajah and Others v. the
United Kingdom, (judgment of 30 October 1991, Series A no. 215)
and Venkadajalasarma v. the Netherlands, (no. 58510/00,
17 February 2004), that also this had not been established. No
information about the applicant's trial had been given to the Libyan
mission when the applicant was presented. Even assuming that the
Libyan authorities would have become aware of these criminal
proceedings in another manner, this was in itself not sufficient for
accepting as plausible that the applicant would thus risk treatment
contrary to Article 3 in Libya. Also the applicant's reliance in this
context on documents of a general nature about the general attitude
of the Libyan authorities was insufficient for finding this risk
established. The provisional-measures judge found that the applicant
had not submitted, let alone demonstrated, facts or circumstances
relating to him personally leading to the conclusion that he, if
expelled to Libya, would risk such treatment, and that in this
respect he had only made a mere reference to the suspicions arisen
against him, the ensuing criminal proceedings and speculated about
the possible consequences thereof upon his return to Libya. According
to the provisional-measures judge is was, however, not for the
Minister to demonstrate that the alleged risk actually did not exist.
As
regards the applicant's request for a provisional measure in
connection with his objection against the decision to impose an
exclusion order on him, the provisional-measures judge acknowledged
that it was difficult for the applicant to furnish proof and for the
Minister to offer relief in this respect. However, as the
provisional-measures judge himself had been given access to the
materials underlying the AIVD individual official report on the
applicant of 9 February 2005, there was an extra guarantee for the
due care with which the conclusions made in this report were drawn
and formulated. The provisional-measures judge accepted that these
underlying materials could carry the conclusions drawn in the report
of 9 February 2005 and that therefore the Minister could impose an
exclusion order on the applicant on the basis of that report. In so
far as the applicant relied on Article 3 of the Convention, the
provisional-measures judge reiterated his finding that the applicant
had not demonstrated that he, if expelled to Libya, would be exposed
to a risk of treatment prohibited by Article 3 of the Convention.
Pursuant to article 117 § 2 of the Aliens Act
1965 (Vreemdelingenwet),
no further appeal lay against this ruling of the
provisional-measures judge.
B. The proceedings on the applicant's placement in
aliens' detention
On
19 May 2003, the applicant was placed in aliens' detention for
removal purposes. On 17 June 2003, following a hearing held on 27 May
2003, the Regional Court of The Hague dismissed the applicant's
appeal against the decision to place him in aliens' detention and his
compensation claim. On 8 August 2003, the Administrative Jurisdiction
Division accepted the applicant's subsequent appeal. Disagreeing with
the Regional Court of The Hague, it held that the applicant had
lawfully stayed in the Netherlands until 16 June 2003 when in the
asylum proceedings the Minister had rejected the applicant's
objection of 3 March 1998 (see above § 15). Accordingly, it
quashed the ruling of 17 June 2003, ordered the lifting of the
detention measure, remitted the case to the Regional Court for a
determination of the applicant's compensation claim and issued an
order for costs against the State.
On
8 November 2005, after having been notified of the decision to impose
an exclusion order on him (see below § 56), the applicant was
again placed in aliens' detention for removal purposes. On 9 November
2005, the Brabant Zuid-Oost Aliens Police Department
(Vreemdelingenpolitie) informed the Libyan mission in the
Netherlands of this placement in aliens' detention and the
applicant's name. As he did not hold any travel or other identity
documents, the Aliens Police Department wished to make an appointment
for presenting the applicant at the Libyan mission for the purposes
of obtaining travel documents. On 10 November 2005, the applicant
refused to cooperate in a presentation by telephone, as he was not
allowed a prior consultation with his lawyer. Following a written
protest by his lawyer, the State Advocate (Landsadvocaat)
informed the applicant's lawyer by letter of 11 November 2005 that no
further contacts with the Libyan mission would be made by the
Netherlands immigration authorities or any other administration for
which the Minister for Immigration and Integration was responsible
until the provisional-measures judge of the Regional Court of The
Hague sitting in Zwolle had given a ruling (see above §§
29-33).
On
23 November 2005, following a hearing held on 16 November 2005,
the Regional Court of The Hague sitting in Zutphen rejected the
applicant's appeal against the decision to place him in aliens'
detention and his pertaining request for compensation.
On
13 March 2006, following a hearing held on 7 March 2006, the Regional
Court of The Hague sitting in Almelo accepted the applicant's appeal
against his continued placement in aliens' detention. It found that
the Minister had failed to demonstrate that, despite the interim
measure issued by the European Court of Human Rights on 2 February
2006, there were reasonable prospects for the applicant's expulsion
within a reasonable delay. Accordingly, it ordered the applicant's
immediate release from aliens' detention. The applicant was released
the same day.
C. Relevant official reports drawn up by the
Netherlands intelligence and security services
38. On
22 April 2002, the Netherlands National Security Service
(Binnenlandse Veiligheidsdienst – “BVD”)
sent an official report to the national public prosecutor responsible
for combating terrorism (landelijk officier van justitie
terrorismebestrijding), part of which reads as follows:
“In the
framework of its statutory task, the BVD is investigating a network
active in the Netherlands which is associated with Islamic terrorist
organisations. It concerns the Groupe Salafiste pour la
Prédication et le Combat (GSPC); an organisation that
works from the same ideological basis as the Al Qaeda network. The
GSPC is an Algerian extremist Islamic organisation of which it is
generally known that it has prepared and carried out attacks in
Algeria and elsewhere.
The part of this
network which is active in the Netherlands is in particular involved
in providing material, financial and logistical support and in
propagating, planning and actually using violence for the benefit of
the international jihad. The members of this network understand jihad
as the armed battle in all its forms against all enemies of Islam,
including the (for them) unacceptable governments in the Middle East
and the United States [of America].
It appears from the
investigation conducted by the BVD that the part of this network
which is active in the Netherlands is implicated in closely
interwoven activities which complement and reinforce each other and
which serve the same goal, namely the waging of jihad. The most
important activities are the following:
- The network is
active in assisting in the entry [into the Netherlands], housing and
transit of persons having actively participated in jihad. The members
of the network provide these persons with (forged) identity papers,
money and shelter. These persons possibly include fighters coming
from an area where an armed conflict is ongoing. It is not excluded
that at the addresses cited below [of the persons belonging to the
part of the network active in the Netherlands] persons as referred to
above are also being sheltered,
- The network is
active in recruiting young men in the Netherlands for effectively
conducting jihad. To this end, these young men are incited to prepare
for martyrdom and they are enabled materially, financially and
logistically to leave for a battle scene. As an example, one can
think of Kashmir where earlier this year two young Dutch men of
Moroccan origin were killed. In this context a battle scene must be
interpreted broadly, including areas where there is an armed conflict
between different parties, but also terrorism,
- The part of this
network which is active in the Netherlands finances its own
activities with proceeds from trading in and exporting hard drugs. It
must be emphasised that it has appeared to the BVD that the trade in
and export of hard drugs as well as the forcing into submission of
those involved in the trade and transport are religiously sanctioned.
This means that the proceeds of the trade in and export of hard drugs
are used for the commonly subscribed goal of jihad, and that
disobedience is labelled as apostasy and severely punished. In this
context, the BVD knows that a member of this network who has
embezzled a quantity of drugs is regarded as an apostate and is
currently searched for by members of this network active in the
Netherlands. It appears from recorded telephone conversations that
violence will be used against this person. It appears from the
terminology used that there is a serious risk of liquidation,
- Lastly it must be
noted that these activities take place in an organisational setting.
Facilitation, falsification, recruitment, financing and liquidation
for the benefit of jihad always take place in mutual consultation and
coordination between members of this network. The activities of the
network have been continuing in any event from 2001 to date. ...”
39. On
29 May 2002, pursuant to the 2002 Intelligence and Security Services
Act (Wet op de inlichtingen- en veiligheidsdiensten), the BVD
was succeeded by the General Intelligence and Security Service
(Algemene Inlichtingen- en Veiligheidsdienst – “AIVD”).
40. On 27
August 2002, the Acting Head of the AIVD sent a further official
report to the national public prosecutor responsible for combating
terrorism. This report reads in its relevant part:
“I. The
recruitment network
In the exercise of
its statutory task, it has appeared to the AIVD from reliable,
vulnerable sources, that a network of extremist muslims is active in
the Netherlands which is in particular involved in providing
material, financial and logistical support and in propagating,
planning and inciting to actually using violence for the benefit of
the international jihad. The members of this network understand jihad
as the armed battle in all its forms against enemies of Islam,
including the (for them) unacceptable governments in the Middle East
and the United States [of America].
It has been
established that the network, in a series of similar activities, is
currently preparing and organising in any event two, possibly even
more, and for the time being unidentified, jihadists. These persons
will travel to a, for the time being unknown, area where the battle
is currently actually being held, with the aim of becoming a martyr.
The departure of both unidentified jihadists would be imminent.
It can be said in
general that currently there is a clear increased activity within the
network, which appears to indicate an imminent departure or other
covert activities of the network in a very near future.
Investigation has
shown that the above network provides support to or forms a part of
the Al Qaeda organisation of Osama Bin Laden.
II. The
activities of the network
The most important
activities of the network are:
The recruitment of
young men for effectively conducting jihad. To this end, it is
propagated that it is the duty is muslims to wage jihad and are young
men incited to prepare for martyrdom.
The materially,
financially and logistically enabling of jihadists to leave in the
direction of a battle scene. The necessary funds are gathered inter
alia by collecting money in mosques in various European countries,
including the Netherlands.
Lastly it must be
noted that these activities take place in an organisational setting.
Recruitment, facilitating and financing for the benefit of jihad
always take place in mutual consultation and following coordination
between members of this network.
III. Important
persons in the network
In the recruitment
network the following persons play a prominent role: ...
2. [the applicant]
alias ... alias ...
IV. The
activities of the important persons in the network
...
2. [the applicant]
To recruit and
motivate jihad-fighters
[the applicant] is
held in high esteem amongst North-African youngsters to be
recruited, also by his past of mujahedin in Afghanistan. [The
applicant] also indicates that once he wished to die as martyr to
the faith.
On 9 August 2002
[the applicant] tells ... that he is prepared to participate, that
he “is ready for it”; but that has to stay very secret.
On 20 April 2002 a
meeting was held in Roermond, organised by opponents of the violent
jihad. [The applicant] wants to attend this meeting together with
... with the aim of letting the attending youngsters hear an
alternative sound (in casu pro-jihad).
On or around 13 May
2002 [the applicant] informs with unknown brothers in Alphen aan de
Rijn whether they are ready to leave. These brothers “do not
mind going”.
To organise and
facilitate jihad-journeys
[The applicant]
tells on 9 August 2002 that the departing jihadists are going to buy
passports (“books”) and that the price of passports
depends on the duration of validity (in casu six months or longer).
[The applicant]
reports on 12 May 2002 to a person having remained unidentified that
fighters are needed and that there is a new, easier route, provided
one disposes of good documents.
Together with ...
[the applicant] has collected money in the Netherlands, in
particular in Eindhoven, in any event by the end of 2001. The
proceeds of these collection activities was several ten thousands of
[Netherlands] guilders and would, according to [the applicant] and
... be for the benefit of the Taliban.”
On
9 February 2005, the AIVD drew up an individual official report on
the applicant, according to which he was classified as a danger to
national security. It had become known to the AIVD that the applicant
was playing a prominent role in a jihad recruitment network active in
the Netherlands which, in the opinion of the AIVD, constituted a
threat to national security. The AIVD had further learned that the
applicant had been a mujahidin, and that he was active as motivator
of jihad fighters, as facilitator of jihad journeys and as jihad
recruiter.
D. The criminal proceedings against the applicant
42. On
the basis of the BVD official report of 22 April 2002 (see above
§ 37) and the AIVD official report of 27 August 2002 (see
above § 39) as transmitted by the national public prosecutor
responsible for combating terrorism to the Public Prosecution Service
(Openbaar Ministerie), two criminal investigations were
opened. These two investigations were later joined. In the course of
this investigation various suspects were arrested and various
premises searched where these suspect were living or staying. In the
course of these searches a large quantity of books, documents and
audio/audiovisual materials were found and seized.
43. The
applicant was arrested on 30 August 2002 and detained on remand on
suspicion of belonging to a criminal organisation with the alleged
aim of prejudicing the Netherlands State by providing assistance to
the enemy conducting a holy war (jihad) against – amongst
others – the Netherlands; and which organisation was further
involved in drug-trafficking, forgery of (identity) documents, using
false (identity) documents, human trafficking and possession of
illegal fire arms. These suspicions were based on the content of
various intelligence reports drawn up by the BVD and its successor
the AIVD.
44. The
applicant and eleven co-suspects were subsequently formally charged
and summoned to appear before the Rotterdam Regional Court in order
to stand trial. The “Rotterdam jihad trial” proceedings
attracted considerable media attention and a photograph of the
applicant appeared in various printed media. In a number of
publications, the applicant's name and nationality were mentioned.
45. In
its judgment of 5 June 2003, the Rotterdam Regional Court acquitted
the applicant and his co-accused of all charges, finding that these
had not been legally and convincingly substantiated. The Rotterdam
Regional Court held that the BVD/AIVD official reports submitted by
the prosecution could not be used in evidence, as the Head and Deputy
Head of the AIVD – who had been examined by the investigation
judge as well as before the Regional Court – and the national
public prosecutor responsible for combating terrorism had refused to
give evidence about the origins of the information set out in these
official reports, invoking their obligation to observe secrecy under
the 2002 Intelligence and Security Services Act whereas, in
accordance with a decision of 2 May 2003, the Minister of the
Interior and Kingdom Relations (Minister van Binnenlandse Zaken en
Koninkrijksrelaties) and the Minister of Justice (Minister van
Justitie) had not released them from that obligation in the event
of their being called as witnesses in the criminal proceedings in
issue. As a result, the defence had not been given the opportunity to
verify in an effective manner the origins and correctness of the
information set out in these official reports. The Regional Court
considered that there was no basis in law for taking another
approach, to the effect that the strictness of evidentiary rules
would depend on the seriousness of the offence of which a person was
suspected. Consequently, although it acknowledged that the obligation
of secrecy at issue was certainly justified in cases concerning
national security and found that the public prosecutor had not
unlawfully used the material supplied by the BVD/AIVD in the
determination of the question whether there was a serious suspicion
of an offence and in the decision to arrest the applicant, the
Regional Court concluded that these BVD/AIVD reports could not be
used in evidence against the applicant. The Regional Court did allow
in evidence telephone conversations intercepted by the BVD/AIVD as
the defence had been given the opportunity to verify their content.
The
prosecution initially lodged an appeal against this judgment but
withdrew it on 6 September 2005, before the trial proceedings on
appeal had commenced. According to a press release issued on 6
September 2005 by the Public Prosecution Service, this decision was
taken in view of new legislative developments, namely the Act on
Terrorist Crimes (Wet Terroristische Misdrijven) –
rendering inter alia recruitment for [Islamic] armed struggle
a criminal offence – having already entered into force on
10 August 2004 but without retroactive effect, and the advanced
stage of adoption by Parliament of the Bill on the Protected
Witnesses Act (Wetsvoorstel voor de Wet Afgeschermde Getuigen)
providing for the possibility of using official reports of the AIVD
in evidence.
E. The proceedings on the applicant's request for
disclosure of materials underlying the AIVD individual official
report of 9 February 2005
On
26 July 2005 and under article 47 of the
Intelligence and Security Services Act 2002 (Wet
op de inlichtingen- en veiligheidsdiensten 2002),
the applicant requested access to the materials underlying the
conclusions set out in the AIVD individual official report of 9
February 2005 (see above § 40).
On
27 July 2005, the Minister of the Interior and Kingdom Relations
informed the applicant that his request would be taken into
consideration as soon as he had provided the Minister with a legible
copy of a valid identification document and that following receipt of
this document, his request would be determined within three months at
the utmost. Failure to do so would entail that his request would not
be taken into consideration. The applicant complied with this request
on 9 August 2005 by submitting a copy of his Netherlands aliens'
identity card (“W-document”), the validity of
which, however, had expired on 20 November 2004.
By
letter of 1 September 2005, the Minister informed the applicant that
his request for access would not be considered as he had failed to
submit a valid identity document, as required pursuant to article 47
§ 3 of the Intelligence and Security Services
Act 2002 and the pertaining Explanatory Memorandum.
On
11 October 2005, the applicant filed a fresh request with the
Minister for access to the materials underlying the conclusions set
out in the AIVD individual official report of 9 February 2005 and, on
the same day, filed an objection against the Minister's decision of 1
September 2005 in which he argued that it could not be derived from
the Explanatory Memorandum to the Intelligence and
Security Services Act 2002 that for a proper determination of the
identity of a petitioner only a valid identity document could be
used. The applicant attached a copy of his valid “W-document”
for the purposes of a reconsideration of the decision in the
objection phase.
On
20 December 2005, following a hearing held on 16 November 2005, the
Minister accepted the objection now the applicant had submitted a
copy of his valid “W-document” and decided to take his
request for access into consideration. As to the applicant's fresh
request for access, the Minister referred to his decision on the
merits of the applicant's request.
In
a new decision taken on the applicant's access request on 20 December
2005, the Minister held that, pursuant to article 53 § 1,
article 5 § 1 (b) in conjunction with article 15 opening
words under (b), and Chapter 4 of the Intelligence and Security
Services Act 2002, no information could be provided about the AIVD's
current level of knowledge, its sources and its working methods.
Consequently, the Minister rejected the applicant's request in so far
as it concerned a request for access to current data. As the official
report at issue concerned Islamic terrorism which was a topical
subject within the meaning of article 53 § 1 (b) of the
Intelligence and Security Services Act 2002, national security
interests opposed providing further information. The Minister further
stated that no outdated data on the applicant had been found in the
archives of the AIVD and its predecessor the BVD.
On
30 January 2006, the applicant filed an objection with the Minister
against the decision of 20 December 2005. No further information
about these proceedings has been submitted.
F. The proceedings on the decision to impose an
exclusion order
On
17 May 2005 the Minister of Immigration and Integration informed the
applicant of the intention (voornemen) to impose an exclusion
order on him, as he was considered to pose a threat to national
security, which conclusion was based on an individual official report
drawn up on the applicant by the AIVD on 9 February 2005 (see above §
40) and which had been communicated to him on 11 April 2005.
On
23 June 2005 and 5 August 2005, the applicant filed written comments
on the intention with the Minister. He contested that he posed a
threat to national security and argued inter alia that such an
exclusion order would be in violation of his rights under Article 3
of the Convention in that his expulsion to Libya would expose him to
a real risk of treatment contrary to this Convention provision.
On
6 October 2005, after having been given access to the underlying
materials of the AIVD individual official report of 9 February 2005,
the Immigration and Naturalisation Department of the Ministry of
Justice concluded that this report, both as regards its content and
procedure, had been drawn up in a careful manner and that it provided
insight in a logical, transparent manner.
On
4 November 2005, the Minister of Immigration and Integration decided
to impose an exclusion order on the applicant, rejecting the
applicant's arguments to the effect that this was contrary to his
rights under Article 3 of the Convention. This decision was notified
to the applicant on 8 November 2005. On the same day, the
applicant filed an objection against this decision with the Minister
and, as he was not allowed to await the outcome of his objection in
the Netherlands, also a request for a provisional measure with the
Regional Court of The Hague.
On
1 February 2006, following a hearing held on 6 December 2005, the
provisional-measures judge of the Regional Court of The Hague sitting
in Zwolle rejected the applicant's request for a provisional measure
(see above §§ 30 and 33).
The
Minister rejected the applicant's objection against this decision on
7 April 2006. On 12 April 2006, the applicant filed an appeal against
this decision as well as a fresh request for a provisional measure
with the Regional Court of The Hague.
On
30 August 2006, the Regional Court of The Hague sitting in Haarlem
rejected the applicant's request for a provisional measure.
On
5 March 2007, following a hearing held on 23 November 2006, the
Regional Court of The Hague sitting in Haarlem rejected the
applicant's appeal against the decision of 7 April 2006. It noted the
final judgment of 1 February 2006 by the provisional-measures
judge of the Regional Court of The Hague sitting in Zwolle, and found
that no facts or circumstances had appeared on the basis of which it
should now reach another conclusion as regards the AIVD individual
official report of 9 February 2005 or should reach a different
decision in respect of the applicant's claim under Article 3 of the
Convention. In this context, it further considered that this was not
altered by the fact that on 2 February 2006 the European Court of
Human Rights had issued an interim measure within the meaning of Rule
39 of the Rules of Court as this did not imply that the Court had
reached the conclusion that the applicant's expulsion to Libya would
be contrary to Article 3 of the Convention. It further considered, as
it could only assess on an ex tunc basis the lawfulness of the
decision to impose an exclusion order on the applicant, that it could
not take into account the policy decision to install a moratorium on
expulsions of Libyan asylum seekers (see below § 88) or the
facts and circumstances having led to that policy decision as it had
been taken after the impugned decision.
The
applicant's subsequent appeal to the Administrative Jurisdiction
Division of the Council of State was dismissed on 15 May 2007. It
upheld the ruling of 5 March 2007 of the Regional Court. It found
that the applicant's appeal did not provide
grounds for quashing the impugned ruling (kan
niet tot vernietiging van de aangevallen uitspraak leiden)
and that, having regard to article 91 § 2 of the Aliens
Act 2000, no further reasoning was called for as the arguments
submitted did not raise questions requiring determination in the
interest of legal unity, legal development or legal protection in the
general sense. No further appeal lay against this decision.
G. Miscellaneous documents
In
its letter of 11 June 2009, sent in reply to questions put by the
applicant's lawyer, the Dutch Refugee Council (Vereniging
VluchtelingenWerk Nederland) stated inter alia that it
appeared from various sources that the Libyan authorities monitor
opposition activities abroad, and that members of the many security
and intelligence services of the Libyan Government often have a good
insight in the activities and contacts of Libyans abroad. It further
stated, referring to information from the Canadian Section of Amnesty
International dated November 2005, that in the eyes of the Libyan
authorities applying for asylum abroad is an act of opposition and
that each opponent of the regime runs the risk of arbitrary detention
and torture.
On
6 January 2010, the Libyan League for Human Rights in the Netherlands
issued a statement, in which it declared that the applicant is a
political opponent of the Libyan regime, that he is being searched
for by the Libyan authorities for his political activities and that
he, if he were to return to Libya, would risk imprisonment.
On
12 January 2010, the non-governmental organisation “Libya Watch
for Human Rights”, based in the United Kingdom, released a
statement, calling upon the Netherlands' authorities to grant the
applicant asylum. It stated that it knew the applicant as a Libyan
activist, that he had been involved in opposition activities inside
Libya and abroad and that – in its opinion – his
association with the National Front for the Salvation of Libya was in
itself enough to lead to his arrest and torture should he return to
Libya. It further expressed its concern that failed asylum seekers
who are returned to Libya will become easy targets for the various
Libyan security agencies in their efforts to act with an iron fist
against enemies of the state. In this connection, it referred to the
fate of Mohammed Abu Ali, a failed asylum seeker who was expelled
from Sweden to Libya in May 2008 and who was tortured to death by the
Libyan security services.
On
15 January 2010, the International Secretariat of Amnesty
International issued a declaration in which it was concluded –
on the basis of various reports concerning other returnees –
that there are substantial grounds for believing that the applicant,
if expelled to Libya, would face a real risk of serious violations of
his human rights including Article 3 of the Convention, because of
his membership of the Libyan League of Human Rights, because the
National Front for the Salvation of Libya – an opposition group
in exile – identified the applicant as a sympathiser, and
because of the allegations of involvement in terrorism-related
activities levelled against him by the Dutch authorities. Such
violations would include torture or other ill-treatment, prolonged
incommunicado detention and unfair trial before the State Security
Court. Amnesty International further stated that its concern in the
applicant's case was based on its monitoring of the treatment of a
number of Libyan nationals suspected of involvement in
terrorism-related activities who had returned – either forcibly
or voluntarily – to Libya from abroad in recent years.
Also in this declaration, reference was made to the death in Libyan
custody of Mohamed Adel Abou Ali after his deportation from Sweden to
Libya in May 2008. According to Amnesty International, the Libyan
authorities claimed that he had committed suicide whereas an
investigation by the Swedish Ministry of Foreign Affairs concluded in
August 2008 that it was impossible to establish the cause of death.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Asylum
proceedings
Until
1 April 2001, the admission, residence and expulsion of aliens were
regulated by the Aliens Act 1965 (Vreemdelingenwet
1965). Further rules were laid down in
the Aliens Decree (Vreemdelingenbesluit),
the Regulation on Aliens (Voorschrift
Vreemdelingen) and the Aliens Act
Implementation Guidelines (Vreemdelingencirculaire).
The General Administrative Law Act (Algemene
Wet Bestuursrecht) applied to
proceedings under the Aliens Act 1965, unless indicated otherwise in
this Act.
Under
article 11 of the Aliens Act 1965, a residence permit may be issued
to an alien:
(a)
who is a refugee within the meaning of the Convention relating to the
Status of Refugees of 28 July 1951;
(b)
who makes a plausible case that he or she has well-founded reasons
for believing that, if expelled, he or she will run a real risk of
being subjected to torture or other cruel or degrading treatment or
punishment.
On
1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act
2000. On the same date, the Aliens Decree, the Regulation on Aliens
and the Aliens Act Implementation Guidelines were replaced by new
versions based on the Aliens Act 2000. Unless indicated otherwise in
the Aliens Act 2000, the General Administrative Law Act continued to
apply to proceedings on requests by aliens for admission and
residence.
According
to the transitional rules, set out in article 11 of the Aliens Act
2000, an application for a residence permit or for admission as a
refugee which was being processed at the time this Act entered into
force would be considered as an application under the provisions of
the Aliens Act 2000. Because no transitional rules were set for the
substantive provisions of the aliens' law, the substantive provisions
under the Aliens Act 2000 took effect immediately. However, pursuant
to article 117 § 2 of the Aliens Act 2000, the procedural rules
under the Aliens Act 1965 continued to apply to the processing of
applications for a residence title submitted before 1 April 2001 when
the Aliens Act 2000 entered into force.
Both
under the Aliens Act 1965 and the Aliens Act 2000, judicial review by
the Regional Court and the Administrative Jurisdiction Division in
administrative law appeal proceedings only addresses whether the
administrative authority concerned has exercised its administrative
powers in a reasonable manner and in the light of the interests at
stake could reasonably have taken the impugned decision (marginale
toetsing).
72. Under
article 29 of the Aliens Act 2000, an alien is eligible for a
residence permit for the purposes of asylum if, inter alia,
he
or she is a refugee within the meaning of the Convention relating to
the Status of Refugees of 28 July 1951, or
he
or she has established that he or she has well-founded reasons to
assume that he or she will run a real risk of being subjected to
torture or other cruel or degrading treatment or punishment if
expelled to the country of origin.
73. Pursuant
to article 45 of the Aliens Act 2000, a decision rejecting an alien's
request for admission to the Netherlands for the purposes of, for
instance, asylum automatically has the following legal consequences:
the
alien is no longer lawfully residing in the Netherlands;
he/she
is required to leave the Netherlands within four weeks;
he/she
is no longer entitled to housing/subsistence benefits, medical care
and other State-funded facilities for asylum seekers; and
officials
entrusted with the supervision of aliens are authorised – if
the alien has not voluntarily left the Netherlands within the delay
fixed for this purpose – to proceed with his/her effective
removal from the Netherlands.
74. Under
the former Aliens Act 1965, a separate decision was given in respect
of each of these legal consequences which could each be challenged in
distinct proceedings. This is no longer possible under the Aliens Act
2000 and a negative decision on an admission request is therefore
known as a so called “multi-purpose decision”
(meeromvattende beschikking).
2. Exclusion
orders
Article
67 of the Aliens Act 2000 provides that a foreign national may be
declared an undesirable alien, entailing the imposition of an
exclusion order, on the ground, inter
alia, that he or she poses a danger to
national security. An exclusion order entails a ban on residing in or
visiting the Netherlands.
An
exclusion order can be challenged in administrative law appeal
proceedings under the terms of the General Administrative Law Act.
Such appeal proceedings do not have an automatic suspensive effect.
Article
197 of the Criminal Code (Wetboek van
Strafrecht) provides that an alien who
stays in the Netherlands while he or she knows that an exclusion
order has been imposed on him or her commits a criminal offence
punishable by up to six months' imprisonment or a fine of up to 4,500
euros.
An
exclusion order may be revoked, upon request, if the alien concerned
has been residing outside the Netherlands for a period of ten years
(article 68 of the Aliens Act 2000).
Such revocation entitles the alien to seek readmission to Netherlands
territory subject to the conditions that are applicable to every
alien.
3. Procedure
followed for obtaining a laissez-passer for effective removal
purposes
In
the case of an alien who has been denied a residence permit, who has
not left the Netherlands voluntarily within the time-limit fixed for
this purpose and who holds no travel documents, the Netherlands
aliens police submit an application for a laissez-passer for the
alien concerned to the Return Facilitation Unit (Unit
facilitering terugkeer – “UFT”)
of the Immigration and Naturalisation Department of the Ministry of
Justice.
The
UFT prepares the presentation of the alien concerned, either in
person or in writing, to the authorities of the country to which the
alien will be removed. A presentation in person consists of an
interview with a staff member of the receiving country's
representation, the aim being to establish the alien's identity and
nationality. After this meeting, the authorities of the receiving
country indicate whether they will examine the application for a
laissez-passer. A presentation in person may be replaced by a
presentation in writing. In such a case, the authorities of the
receiving country are sent a letter – containing all
information on the alien's identity known to the Netherlands
authorities, such as his/her full name, date and place of birth, and
any available information on parents and other relatives –
asking these authorities to provide a laissez-passer.
Once
the authorities of the receiving country have agreed to examine an
application for a laissez-passer, the UFT sends regular reminders to
these authorities, requesting the results of the investigation. Some
reminders may concern an individual case while others may be couched
in more general terms, requesting the results of all outstanding
applications.
4. The
General Administrative Law Act
Article
8:27 § 1 of this Act reads:
“Parties who have been summoned
to appear ... before the court ... are obliged to appear and to
provide the information requested. The parties' attention is drawn to
this [obligation] as well as to section 8:31.”
Article
8:29 of the Act provides:
“1. Parties who are obliged to submit information
or documents may, when there are substantial reasons for so doing,
refuse to provide information or submit documents, or inform the
court that it alone may take cognisance of the information or
documents.
2. Substantial reasons shall in any event not apply to a
public administration body in so far as the obligation exists,
pursuant to the Government Information (Public Access) Act, to grant
requests for information contained in documents.
3. The court shall decide whether the refusal or
limitation on taking cognisance as referred to in the first paragraph
is justified.
4. Should the court decide that such refusal is
justified, the obligation shall not apply.
5. Where the court decides that the restriction on
taking cognisance is justified, it may, with the permission of the
other party, give a ruling on the basis of, among other elements, the
information or documents concerned. If permission [by the other
party] is withheld, the case shall be referred to another bench.”
Article
8:31 of the Act reads:
“If a party fails to comply with the obligation to
appear, to provide information, to submit documents or to cooperate
in an investigation [commissioned by the court from an expert
appointed by the court] within the meaning of section 8:47 § 1,
the court may draw therefrom the inferences which it sees fit.”
Article
8:45 of the Act, in so far as relevant, reads:
“1. The court may request the parties and others,
within a period fixed by the court, to provide written information
and to submit documents held by them.
2. Administrative public bodies shall
be obliged, also when they are not a party to the proceedings, to
comply with a request within the meaning of the first paragraph.
Article 8:29 shall apply by analogy. ...”
5. The
Netherlands intelligence and security services
An
overview of the relevant domestic law and practice as regards the
Netherlands intelligence and security services is set out in the
Court's decision on admissibility in the case of Brinks
v. the Netherlands (no. 9940/04, 5
April 2005).
Pursuant
to article 15 of the Intelligence and Security Services Act 2002, the
Heads of the intelligence and security agencies are to ensure the
secrecy of data eligible for classification as confidential, the
secrecy of sources eligible for classification as confidential from
which data have been obtained, and the safety of persons with whose
cooperation data are collected.
Article
47 § 3 the Intelligence and Security Services Act 2002 reads:
“Our Minister concerned ensures a proper
determination of the identity of the petitioner.”
Article
53 § 1 of this Act provides as follows:
“A request within the meaning of Article 47 will
in any case be rejected if:
a. if in the framework of any investigation
data relating to the petitioner have been processed, unless:
1º the data concerned have been processed more
than 5 years ago
2º since then no new data relating to the
petitioner have been processed in connection with the investigation
in the framework of which the data concerned were processed, and
3º the data concerned are not relevant for any
current ongoing investigation;
b. no data relating to the petitioner have
been processed.
2. If a petition is rejected under the first
paragraph, the reasons given for the refusal shall only indicate in
general terms all grounds for refusal mentioned in that provision.”
Article
55 § 1 (b) of the Act states:
“A request within the meaning
of article 51 [request for access to data
other than personal data] will be rejected in so far as providing the
data to which the request relates: ...
b. could harm the national security;”
Article
87 of the Intelligence and Security Services Act 2002 reads:
“1. If in
administrative law proceedings concerning the application of this Act
... Our Minister concerned ... is obliged by the court under article
8:27, 8:28 or 8:45 of the General Administrative Law Act to provide
information or to submit documents, article 8:29 §§ 3-5 of
that Act does not apply. If Our Minister ... informs the court that
only the court may take cognisance of, respectively, information or
documents [requested by the court], the court may only with
permission of the other party give judgment based also on such
information or documents. If Our Minister concerned refuses to
provide information or to submit documents, article 8:31 of the
General Administrative Law Act shall remain applicable.
2. If Our Minister is
required to submit documents to the court, consultation of the
documents concerned shall be sufficient. In no circumstances may a
copy be made of the documents concerned.”
6. Official
country assessment report on Libya of the Netherlands Ministry of
Foreign Affairs
The
most recent official country assessment report on Libya has been
drawn up by the Netherlands Ministry of Foreign Affairs on
20 November 2002. The relevant parts of this report,
which focuses on the situation in Libya of returned unsuccessful
asylum seekers, read:
“Under its “Leader of the Great Revolution
of 1 September”, Colonel Muammar Al Qadhafi, the Great
Libyan-Arab Socialist People's Jamahiriya (in short: Libya) is a
severely controlled state that does not allow any political
divergences and acts consequently against opponents of the regime.
...
The actual power in Libya lies with Qadhafi and some
trustworthy persons from the revolution. Qadhafi is the leader of the
revolution and also commander in chief of the armed forces. Qadhafi
has reinforced his position in the course of the years, inter alia
by forming revolutionary committees who in his name control daily
life.
The Libyan legislation prohibits opposition to the
current regime. Also party-political activities are not allowed. The
Libyan authorities are alert as regards opposition against the regime
and in particular in respect of Muslim fundamentalism.
Qadhafi acts hard against (alleged) opposition groups.
The opposition both in Libya and abroad seems too divided to be able
to form a front against the authorities. ... In the past opponents of
the regime were executed, inter alia, by public hanging. There
is no recent information about the execution of capital punishments.
The last officially announced execution took place in 1977. Since the
Libyan government have exterminated some anti-regime groups in the
end of the nineties, no verifiable information about internal
opposition has been obtained. After 11 September 2001, the Libyan
government tend to accuse all opponents of the regime of membership
or ties with the Al Qaeda organisation. ...
Respect for human rights leaves a serious lot to be
desired. The elementary conditions for a State based on the rule of
law are missing; there is no freedom of expression, no freedom of
association and assembly and there are no elections. There are no
political parties. There are reports about ill-treatment and torture
during detention. ...
Persons who are leaving Libya are in practice subjected
to very strict controls. This seems to apply to all travellers, but
to Libyans in particular. Strict controls are also carried out on
persons who enter Libya. Border control officials reportedly consult
lists of names. Apart from the border police and customs, also
representatives of the security services of the Ministry of Justice
and Public Security are present at the borders.
Until the autumn of 2001 all Libyans having stayed more
than half a year abroad were, upon return to Libya, questioned about
their activities and contacts abroad. Since then the Libyan
authorities in principle no longer use this six-month term, but all
persons having stayed for a lengthy period abroad will, upon return,
be questioned by the Libyan security services. This does not only
concern unsuccessful asylum seekers but all returnees. There is no
legal basis in Libyan law for this procedure, but this treatment
forms part of the standard practice of the Libyan authorities. The
civil servants in Libya entrusted with border control determine on
the basis of stamps in the travel documents of returning Libyans who
must be questioned. The duration of the stay abroad is an important
cause to submit returning Libyans to questioning by the Libyan
security services. The interest of the Libyan security services is
particularly targeted at possible opposition activities, critics of
the Libyan political system and/or contacts with opponents of the
Libyan regime abroad. In so far as appears, an asylum application
abroad is in itself no ground for a particular interest by the Libyan
authorities. The Libyan government have many security and
intelligence services (also abroad). The members
of these services often have a good insight in the activities and
contacts of Libyans abroad.
Unsuccessful asylum seekers, who mostly will have stayed
for a longer period outside of Libya, will in all likelihood be
detained for some days for the purpose of questioning. It can be
assumed with certainty that unsuccessful asylum seekers who are being
expelled in an accompanied manner will be temporarily detained and
questioned. It would, however, also occur that unsuccessful asylum
seekers are only briefly questioned upon their return to Libya. In so
far as known, the manner of acting of the Libyan authorities does not
necessarily have repercussions for further stay in Libya. Examples
are known of removed unsuccessful asylum seekers who, after their
forced return, have been able to resume their existence in Libya in
an unhindered manner. ...
There is an essential difference between the treatment
of persons suspected of oppositional activities in or outside of
Libya and persons not so suspected. Suspicion of oppositional
activities is sufficient for longer detention and will often lead to
conviction. Association with an opponent of the regime is already
sufficient cause to detain and question a person for a longer period.
In case an unsuccessful asylum seeker, after having returned to
Libya, is detained, ill-treatment or torture during detention cannot
be excluded. ...”
7. Netherlands
policy and relevant case-law on Libyan asylum seekers
91. With
the exception of the period between July 2002 and December 2006
when this was done by the Minister for Immigration and Integration,
the respondent Government's policy on asylum seekers is devised by
the Deputy Minister of Justice (Staatssecretaris
van Justitie) on the basis of inter
alia official country assessment
reports published by the Minister of Foreign Affairs. As regards
Libya, the last such report was released on 20 November 2002
(see above § 86).
On
7 July 2006, the Minister of Immigration and Integration adopted
a moratorium until 1 January 2007 on expulsions and determination of
asylum requests (vertrek- en besluitmoratorium) lodged by
Libyan asylum seekers. This policy decision, as
set out in the WBV (Wijzigingsbesluit
Vreemdelingencirculaire 2000) 2006/28
of 16 August 2006, was based on a statement set out in the official
report on Libya of 20 November 2002 according to which it could not
be excluded, in case an unsuccessful asylum seeker was detained after
his or her return to Libya, that ill-treatment or torture would occur
in detention. A temporary stay of removals to Libya would
allow awaiting further developments and a possible clarification of
the situation. Libyans posing a threat to public order or national
security were excluded from the moratorium.
In
her letter to the Lower House of Parliament (Tweede Kamer) of
10 July 2006, informing it of this moratorium, the Minister stated
that more recent reports of international organisations and the
policy of other European Union States gave the impression that
rejected asylum seekers who were not an opponent of the regime did
not run a risk of being ill treated or tortured. The Minister
further stated that, due to a lack of investigation possibilities,
the Minister of Foreign Affairs could not confirm or deny this, and
that, after the summer of 2006, the Minister of Foreign Affairs would
review again whether new possibilities of investigation had arisen.
On
15 December 2006, the Minister decided to prolong the moratorium
until 30 June 2007, i.e. its maximum period of validity pursuant to
article 43 of the Aliens Act 2000. By letter of 12 January 2007, the
Minister explained to the Lower House of Parliament that the
non-recurring prolongation had been decided because for the time
being the Ministry of Foreign Affairs did not have any possibilities
to examine the situation of returned, rejected asylum seekers in
Libya and that it had indicated that an investigation would not be
accomplished by 1 January 2007.
On
14 April 2009, in case no. 200802086/1, the Administrative
Jurisdiction Division rejected an appeal filed by a Libyan national
on whom an exclusion order had been imposed as he was considered to
pose a threat to national security. This decision was based on the
contents of an official report drawn up by the AIVD according to
which this person publically praised jihad and martyrdom, was
associated with a Libyan terrorist movement striving to establish in
Libya a Wahhabism-based orthodox-Islamic regime, and was maintaining
contacts with persons belonging to international terrorist networks.
In his appeal, the appellant raised a number of grievances under
Articles 3 and 13 of the Convention. The Administrative Jurisdiction
Division rejected these complaints. It accepted the findings of the
judges of the Regional Court of The Hague – who like the
Administrative Jurisdiction Division itself had had access to the
materials underlying the AIVD official report without these materials
being disclosed to the parties – that the AIVD report had been
drawn up with due care, that its contents had a sufficient factual
basis in the underlying materials and that there were no reasons for
doubting its correctness or completeness. It further accepted the
Regional Court's refusal to give detailed reasons for rejecting the
alleged incorrectness and incompleteness of the AIVD report as this
would be incompatible with the confidential nature of the underlying
materials. The Administrative Jurisdiction Division further accepted
the finding of the Regional Court that it had not been established
that the applicant was known to the Libyan authorities as a political
opponent or otherwise would have attracted the negative attention of
the Libyan authorities on the basis of which it should be accepted
that he would be exposed to a risk of being subjected to treatment
proscribed by Article 3 in case he would return to Libya.
In
a letter of 22 December 2009, the Minister of Justice informed the
Lower House of Parliament on the current asylum policy in respect of
Libya. This letter reads in its relevant part:
“The moratorium on expulsions and determination of
asylum requests ... has already expired a
considerable time ago thereby ceasing its effect ex
iure. Since then there exist no policy
obstacles for determining asylum requests [filed by Libyan nationals]
and, where this arises, to reject such requests and to undertake
expulsion. In taking this course of action, I find support in the
case-law of the Administrative Jurisdiction Division of the Council
of State (case no. 200802086/1) and the fact that in any event Sweden
has recently expelled rejected asylum seekers to Libya.
Obviously, great care is exercised in
the assessment of the accounts of Libyan asylum seekers. As in all
cases, the principle will also apply in relation to Libyan asylum
seekers that where the account is credible, but the information
sources available do not confirm the account and whereas a new
investigation appears impossible, this will not weigh in the alien's
disadvantage in the determination of the asylum request.”
The
policy position set out in this letter of 22 December 2009 has been
included in the most recent, relevant amendment of the Aliens Act
Implementation Guidelines (WBV 2010/6 of 5 March 2010).
To
date, no update has been issued to the official country assessment
reports on Libya of 20 November 2002.
III. INTERNATIONAL
TEXTS AND DOCUMENTS
1. The 1951 United Nations Convention relating to the
Status of Refugees
The
Netherlands are a party to the 1951 United Nations Convention on the
Status of Refugees. Articles 1, 32 and 33 of this Convention read as
follows:
“Article 1
For the purposes of the present
Convention, the term 'refugee' shall apply to any person who ...
owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is
unable, or owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling
to return to it.
Article 32
1. The Contracting States
shall not expel a refugee lawfully in their territory save on grounds
of national security or public order.
2. The expulsion of such a
refugee shall be only in pursuance of a decision reached in
accordance with due process of law ...
Article 33
1. No Contracting State
shall expel or return (refouler)
a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or
political opinion.
2. The benefit of the
present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted
by a final judgment of a particularly serious crime, constitutes a
danger to the community of that country.”
2. Council
of Europe material on terrorism
The
Council of Europe has produced three international treaties relating
to the fight against terrorism, namely:
- the
European Convention on the Suppression of Terrorism of 27 January
1977 (ETS 90), which entered into force on 4 August 1978 and which is
designed to facilitate the extradition of persons having committed
acts of terrorism, and the Protocol of 15 May 2003 amending this
Convention (ETS 190) which has not yet entered into force;
- the
European Convention on the Prevention of Terrorism of 16 May 2005
(ETS 196), which has not yet entered into force and which seeks to
increase the effectiveness of existing international texts on the
fight against terrorism and to strengthen member states' efforts to
prevent terrorism; and
- the
European Convention on laundering, search, seizure and confiscation
of the proceeds of crime and on the financing of terrorism of 16 May
2005 (ETS 198), which has entered into force on 1 May 2008 and which
is designed as an update and extension of the European Convention on
laundering, search, seizure and confiscation of the proceeds from
crime of 8 November 1990 (ETS 141) by taking into account the fact
that not only can terrorism be financed through money laundering from
criminal activity, but also through legitimate activities.
Article
4 § 2 of the Protocol amending the European Convention on the
Suppression of Terrorism states:
“The text of Article 5 of the Convention shall be
supplemented by the following paragraphs:
'2 Nothing
in this Convention shall be interpreted as imposing on the requested
State an obligation to extradite if the person subject of the
extradition request risks being exposed to torture; ...'”
Article
21 § 2 of the European Convention on the Prevention of Terrorism
provides:
“Nothing in this Convention shall be interpreted
as imposing an obligation to extradite if the person who is the
subject of the extradition request risks being exposed to torture or
to inhuman or degrading treatment or punishment.”
Furthermore,
following its meeting on 14 November 2001 to discuss “Democracies
facing terrorism” (CM/AS(2001) Rec 1534), the Committee of
Ministers adopted on 11 July 2002 “Guidelines on human rights
and the fight against terrorism”. These guidelines consist of
seventeen principles – derived from various international legal
and political texts and the Court's case-law – specifying the
limitations which States are to respect in their efforts to combat
terrorism.
These
guidelines provided, inter alia:
“I. States'
obligation to protect everyone against terrorism
States are under the obligation to
take the measures needed to protect the fundamental rights of
everyone within their jurisdiction against terrorist acts, especially
the right to life. This positive obligation fully justifies States'
fight against terrorism in accordance with the present guidelines.
II. Prohibition
of arbitrariness
All measures taken by States to fight
terrorism must respect human rights and the principle of the rule of
law, while excluding any form of arbitrariness, as well as any
discriminatory or racist treatment, and must be subject to
appropriate supervision. ...
IV. Absolute
prohibition of torture
The use of torture or of inhuman or
degrading treatment or punishment is absolutely prohibited, in all
circumstances, and in particular during the arrest, questioning and
detention of a person suspected of or convicted of terrorist
activities, irrespective of the nature of the acts that the person is
suspected of or for which he/she was
convicted. ...
XII. Asylum,
return ('refoulement')
and expulsion
1. All
requests for asylum must be dealt with on an individual basis. An
effective remedy must lie against the decision taken. However, when
the State has serious grounds to believe that the person who seeks to
be granted asylum has participated in terrorist activities, refugee
status must be refused to that person.
2. It
is the duty of a State that has received a request for asylum to
ensure that the possible return ('refoulement')
of the applicant to his/her country of origin or to another country
will not expose him/her to the death penalty, to torture or to
inhuman or degrading treatment or punishment. The same applies to
expulsion. ...”
2. The European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment
In
its report to the Italian Government on its visit to Italy from 27 to
31 July 2009 (CPT/Inf (2010)14 of 28 April 2010) and in the context
of the so-called “push-back” operations, the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) stated in respect of the risk of
torture or other forms of ill-treatment of persons returned to Libya:
“42. The CPT has not
itself been in a position to verify, through an on-site visit,
conditions of detention and the treatment afforded to persons
detained in Libya. However, according to consistent accounts from a
variety of sources, overcrowding, absence of beds, poor hygiene,
inadequacy of food, lack of health care and sanitation, and rampant
skin infections would appear to be commonplace in Libyan detention
centres. ...
43. Incommunicado
detention is another cause for concern. In its Communication of 13
May 2009 [document CAT/C/LBY/Q/4], the UN Committee Against Torture
(UNCAT) stated that the practice of prolonged incommunicado detention
is allegedly widespread, putting detainees at risk of torture and
ill-treatment. ...
47. In the light of the
above, there would appear to be a real risk, in the Committee's view,
that persons detained in Libya, including migrants, may be subjected
to severe ill-treatment ...”
3. Various reports on Libya
The
United Kingdom Home Office Country of Origin Information Key
Documents (Libya) published on 22 April 2008, under the heading
“Human Rights” read as follows:
“'While Libya has taken
positive steps, such as releasing some political prisoners, it
remains a country where the citizens have few civil rights or
political liberties'. (Freedom House Freedom in the World 2007)
'Libya's international reintegration accelerated in 2007 despite the
government's ongoing human rights violations. In July the government
released six foreign medical workers who had been tortured, unfairly
tried, and imprisoned for eight years for allegedly infecting
children with HIV. In October Libya won a seat on the UN Security
Council. Driven by business interests and Libya's cooperation on
counterterrorism, the United States and some European governments
strengthened ties with Libya throughout the year. Yet the Libyan
government continues to imprison individuals for criticizing the
country's political system or its leader, Mu`ammar al-Qadhafi, and
maintains near-total restrictions on freedom of expression and
assembly. It forbids opposition political parties and independent
organizations. Torture remains a concern'. (Human Rights Watch World
Report 2008).
'Libya
continues to detain scores of individuals for engaging in peaceful
political activity. According to the Geneva-based group Libyan Human
Rights Solidarity, Libya has forcibly disappeared 258 political
prisoners, some for decades. Many were imprisoned for violating Law
71, which bans any group activity opposed to the principles of the
1969 revolution that brought al-Qadhafi to power. Violators of Law 71
can be put to death.'(Human Rights Watch World Report 2008)
'Law
enforcement officials resorted to excessive use of force, killing at
least 12 demonstrators while breaking up a protest and one detainee
during a prison disturbance. Over 150 political detainees, including
prisoners of conscience, were released following pardons. Freedom of
expression and association remained severely restricted. Several
Libyans suspected of political activism abroad were arrested or
otherwise intimidated when they returned to the country ... There
were continuing concerns about the treatment of migrants,
asylum-seekers and refugees. No progress was made towards
establishing the fate or whereabouts of victims of enforced
disappearances in previous years'. (Amnesty International Annual
Report 2007)
'The
government's human rights record remained poor [in 2007]. Citizens
did not have the right to change their government. Reported torture,
arbitrary arrest, and incommunicado detention remained problems. The
government restricted civil liberties and freedoms of speech, press,
assembly, and association. The government did not fully protect the
rights of migrants, asylum seekers, and refugees. Other problems
included poor prison conditions; impunity for government officials;
lengthy political detention; denial of fair public trial;
infringement of privacy rights; restrictions of freedom of religion;
corruption and lack of transparency; societal discrimination against
women, ethnic minorities, and foreign workers; trafficking in
persons; and restriction of labour rights.' (United States Department
of State Report on Human Rights Practices 2007)
'In 2007
the government continued to review proposals for a new penal code and
code of criminal procedure, a process that began at least three years
before. In 2005 the secretary of justice stated that, under the new
penal code, the death penalty would remain only for the “most
dangerous crimes” and for “terrorism.” However, a
2004 draft of the new code suggests the government might accept a
very broad definition of terrorism, which could be used to
criminalize people expressing peaceful political views. The
government has yet to present either draft code to the General
People's Congress'. (Human Rights Watch World Report 2008). 'A large
but unknown number of persons were detained and imprisoned during the
year either for engaging in peaceful political activity or for
belonging to an illegal political organization. The law bans any
group activity based on any political ideology inconsistent with the
principles of the 1969 revolution'. (United States Department of
State Report on Human Rights Practices 2007)”
According
to the “Amnesty International Report 2009 – Libya”
of 28 May 2009, the Society of Human Rights of the Gaddafi
International Charity and Development Foundation (“GDF”;
headed by Saif al-Islam al-Gaddafi, a son of Mu'ammar al-Gaddafi)
announced that 90 members of the Libyan Islamic Fighting Group had
been released from prison following negotiations led by the GDF with
the group's leaders. The GDF stated that this represented a third of
the group's membership. The report further states that the Libyan
authorities did not disclose any information about two Libyan
nationals who were detained when they were returned from US custody
in Guantánamo Bay in December 2006 and September 2007,
respectively, and that this lack of information raised fears for
their safety and that of other Libyans who might be returned under
similar circumstances.
The
“2009 Report on International Religious Freedom – Libya”,
as released on 26 October 2009 by the United States Department of
State reads inter alia:
“The country does not have a
constitution, and there is no explicit legal provision for religious
freedom. However, a basis for some degree of religious freedom is
provided in the Great Green Charter on Human Rights of the Jamahiriya
Era, and the Government generally respects the right to observe one's
religion freely in practice. The Government tolerates most minority
religions but strongly opposes militant forms of Islam, which it
views as a security threat...”
In
its “World Report 2010 – Libya” of 20 January 2010,
Human Rights Watch asserted that Libya continued to share
intelligence on militant Islamists with Western governments, and that
the United States and United Kingdom continued to consider Libya a
strategic partner in counterterrorism efforts. According to Human
Rights Watch, a number of those the United States had returned or
rendered to Libya over the past five years remained in detention
after unfair trials, and Libyan authorities continued to detain two
Libyan citizens whom the US government returned in 2006 and 2007 from
detention in Guantánamo Bay. In this report, Human Rights
Watch further stated that in April 2009 it was able to confirm the
detention of five former CIA secret detainees in Abu Salim prison.
The
relevant parts of the “2009 Country Reports on Human Rights
Practices – Libya” issued on 11 March 2010 by the United
States Department of State, read:
“The Great Socialist People's
Libyan Arab Jamahiriya is an authoritarian regime with a population
of approximately 6.3 million, ruled by Colonel Mu'ammar al-Qadhafi
since 1969. The country's governing principles are derived
predominantly from al-Qadhafi's Green Book ideology. In theory
citizens rule the country through a pyramid of popular congresses,
communes, and committees, as laid out in the 1969 Constitutional
Proclamation and the 1977 Declaration on the Establishment of the
Authority of the People. ... In practice al-Qadhafi and his inner
circle monopolized political power. These authorities generally
maintained effective control of the security forces.
The government's
human rights record remained poor. Citizens did not have the right to
change their government. Continuing problems included reported
disappearances; torture; arbitrary arrest; lengthy pretrial and
sometimes incommunicado detention; official impunity; and poor prison
conditions. Denial of fair public trial by an independent judiciary,
political prisoners and detainees, and the lack of judicial recourse
for alleged human rights violations were also problems. ...
The law prohibits [torture
and other cruel, inhuman, or degrading treatment or punishment], but
security personnel reportedly routinely tortured and abused detainees
and prisoners during interrogations or as punishment. Detainees often
were held incommunicado. Foreign observers noted that incidents of
torture – used as a punishment in Internal Security Service
prisons – seemed to have decreased over the past year.
There were reports of torture and
abuse during the year. On December 10, the Qadhafi Development
Foundation (QDF) released a report on human rights practices in the
country. In a statement accompanying the release, the QDF said during
the year it had received a "large number of complaints" of
torture during imprisonment and called for the government to waive
immunities from prosecution for officials accused of torture. ...
In July 2008 Saif al-Islam
al-Qadhafi, son of Colonel Mu'ammar
al-Qadhafi, conceded that acts of torture and excessive violence had
taken place in prisons. Al-Qadhafi denied government culpability,
arguing that the individuals responsible for the torture had acted on
their own initiative and were being tried within the legal system. At
year's end there was no information released on the progress of
trials. ...
On October 15, authorities released
88 prisoners held for membership in the Libyan Islamic Fighting Group
(LIFG) and other jihadist groups. On July 10, the LIFG had stated
that its 2007 announced merger with al-Qa'ida
in the Islamic Maghreb was "invalid" and in August
renounced violent jihad. ...
The government reportedly held
political detainees, including as many as 100 associated with banned
Islamic groups, in prisons throughout the country, but mainly in the
Ayn Zara, Jadida, and Abu Salim Prisons in
Tripoli. ...
Although there is no explicit law
guaranteeing religious freedom, the government generally respected in
practice the right to observe one's
religion. Islam is the equivalent of a state religion and is
thoroughly integrated into everyday political and social life. The
government regulated mosques, religious schools, and clerics to
ensure that all views were in line with the state-approved form of
Islam. The government strongly opposed militant forms of Islam, which
it viewed as a threat to the regime. ...
The government continued to encourage
dissidents abroad to return and publicly promised their safety, but
there were numerous reports that the government detained dissidents
who returned from exile. The government reportedly interrogated
students returning from study abroad and at times discouraged
students from studying abroad.”
On
25 March 2010, Human Rights Watch issued a press release stating:
“The release on March 24 of at
least 202 prisoners, including 80 who had been acquitted but
continued to be held, was a positive step, but Libya should release
all prisoners who continue to be detained despite judicial orders for
their release....
In a Tripoli news conference today,
Saif al-Islam al-Gaddafi, the son of the Libyan leader, Mu'ammar
el-Gaddafi, announced the release of the 214 prisoners, including the
80 acquitted of the offenses with which they had been charged. He
said another 34 were members of the Libyan Islamic Fighting Group, a
group which had sought to overthrow Gaddafi's rule, and 100 others
were 'individuals with a direct relationship to the groups operating
in Iraq.' Later that day however, independent Libyan news website
Libya Al Youm reported that Abu Salim prison authorities had refused
to release 12 prisoners who were on the list and had told the waiting
families that they would be released in the next 28 days
Saif al-Islam al-Gaddafi said this
brought the total number of prisoners released as a result of efforts
by the quasi-governmental Gaddafi Foundation, which he leads, to 705.
He said that 409 prisoners remained in Abu Salim prison, of whom 232
'would soon be released' when 'we are sure
that those individuals will no longer pose a threat to society and
that they are ready to reintegrate.'
One of those who remain in Abu Salim
prison despite having been acquitted by a court is Mahmoud Boushima,
a dual British-Libyan citizen who lived in the UK and returned to
Libya on July 17, 2005. On July 28, 2005, internal security forces
arrested and imprisoned him in Abu Salim. The state security
prosecutor then charged him with membership in an illegal
organization, in this case the Libyan Islamic Fighting Group, under
Article 206 of the penal code and Articles 2, 3 and 4 of Law 71.
... His case eventually came before the Supreme Court, which ruled in
his favor on March 30, 2008, and ordered his release. This order for
release has been ignored by the Internal Security Agency, which
controls Abu Salim prison. ...”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION AND
ARTICLE 13 TAKEN TOGETHER WITH ARTICLE 3
The
applicant submitted that, if expelled to Libya, he would be exposed
to a real and personal risk of being subjected to treatment contrary
to Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
applicant also contended that he did not have an effective remedy in
respect of his above grievance in that he could not effectively
challenge the national authorities' assertion that he posed a threat
to national security, the latter being the ground to impose an
exclusion order on him and to reject his asylum request. Article 13
reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties' submissions
1. The applicant
The
applicant submitted that there were substantial grounds for believing
that he would be exposed to a real and personal risk of being
subjected to treatment in breach of Article 3 if expelled to Libya.
He had given detailed and verifiable statements about individual
members of the opposition group to which he had belonged in Libya and
information about this group's activities as well as his own
activities for that group. The opposition group had been “fed”
from abroad by the NFSL as certified in written declarations made by
the NFSL in the proceedings on his asylum request. In these asylum
proceedings, the Netherlands authorities had failed to carry out a
thorough and comprehensive investigation into his claims which, in
his opinion, was called for given Libya's extremely poor human rights
standard particularly towards (orthodox Muslim) dissidents.
As
regards the Rotterdam jihad trial, the applicant emphasised that it
was primarily the mass media attention for this trial which had
caused a further substantial effect on the risk of him being
subjected to treatment proscribed by Article 3 of the Convention if
expelled to Libya. Whereas after his acquittal, he produced more and
more compelling declarations by serious non governmental
organisations on Libya, the Netherlands authorities had not
undertaken any investigating activity which could be described as
rigorous scrutiny for the purposes of Article 3 of the Convention in
order to rule out that he ran a real risk of torture or ill treatment
in Libya.
The
applicant further argued that, in view of the reasons for the
respondent Government's adoption in July 2006 of a moratorium on
decisions on asylum requests and on expulsions of Libyan nationals,
the boldness with which the respondent Government maintained their
denial of the existence of a “real risk” under Article 3
of the Convention in his case was questionable.
Relying
on the Court's considerations in the cases of Hilal v. the United
Kingdom (no. 45276/99, § 63), ECHR 2001 II), Said v.
the Netherlands (no. 2345/02, § 51, ECHR 2005 VI),
Bader and Kanbor v. Sweden (no. 13284/04, § 45, ECHR
2005 XI), D. and Others v. Turkey (no. 24245/03, §§
46-48, 22 June 2006), the applicant considered that the Netherlands
authorities had fallen short, as regards the scope and
meticulousness, of their obligation under Article 3 and Article 13 of
the Convention to investigate meticulously and assess adequately his
claim that in Libya there existed for him a real risk of exposure to
treatment contrary to Article 3. The Netherlands authorities had
trivialised his role in and activities for the opposition in Libya
and abroad without considering these in the light of statements of
the NFSL, the LLHR and Amnesty International, and had fully
disregarded the consequences of the (publicity of the) Rotterdam
jihad trial and of him being declared a danger to national security
as an Islamic terrorist suspect and the imminent dangers connected to
this imputation for him if he were to be expelled to Libya.
In
support of the risk claimed, the applicant referred to the statement
issued on 6 January 2010 by the Libyan League for Human Rights in the
Netherlands, the statement of 12 January 2010 by Libya
Watch, the
declaration on his situation issued on 15 January 2010 by Amnesty
International, as well as to various reports published on internet
about the position of returning asylum seekers and other returnees to
Libya after a number of years abroad. The latter included reports on
the rejected asylum seeker Khalid Blaied Almahdoui Altarhoni who had
disappeared since his arrival at Tripoli airport on 27 February 2005,
the arrest of the rejected asylum seeker Ali Altalhi after his
expulsion from Switzerland to Libya in September 2007, and the death
under torture in detention in Libya of the political opponent
Mohammed Adil Abu Ali who had been expelled from Sweden to Libya in
May 2008 and on the basis of which the Swedish authorities had
temporarily ceased the expulsion of asylum seekers to Libya. The
applicant further submitted that the Libyan consul kept inquiring
about him.
2. The respondent Government
The
respondent Government submitted that, in view of the Court's findings
in Jabari v. Turkey (no. 40035/98, § 39, ECHR 2000 VIII)
and I.I.N. v. the Netherlands ((dec.), no. 2035/04, 9 December
2004), the fact that the AIVD believed the applicant to be a threat
to national security necessitated an extremely thorough examination
of whether the applicant had indeed made a plausible case that there
were substantial grounds for concluding that he would be at risk of
treatment in violation of Article 3 of the Convention in case of his
expulsion to Libya, given the absolute character of the prohibition
set out in Article 3.
The
Government further submitted that a thorough investigation was
necessary not only to determine if the alien in question has
adequately established that he can expect to be subjected to
treatment prohibited by Article 3 upon returning to his country of
origin but also because it was necessary to ensure that the State is
not simply forced to resign itself to the alien's presence which may
represent a threat to the fundamental rights of its citizens,
particularly in cases like the present one where national security
was at stake. Relying on the Court's considerations in the cases of
Vilvarajah and Others v. the United Kingdom (30 October 1991,
§ 111, Series A no. 215), Pranjko v. Sweden ((dec.), no.
45925/99, 23 February 1999) and Taheri Kandomabadi v. the
Netherlands ((dec.), nos. 6276/03 and 6122/04, 29 June 2004), the
Government considered that the guiding principle here was that the
“mere possibility of ill-treatment” is insufficient to
assume that expulsion is incompatible with Article 3 of the
Convention.
In
assessing the relevant risk, the Government found significant to note
that the applicant had always been vague about his actual activities,
had never provided any specifics about his political activities, and
had not submitted any verifiable information about these alleged
activities at any stage of the case. Also the statements of the NFSL
and the LLHR, which were quite general in nature, did not contain any
details about the applicant's specific activities. Although the
applicant maintained that a large proportion of the opposition group
to which he belonged in Libya was arrested, he himself had always
managed to stay out of trouble and remained in Libya for nearly a
year and a half following the events that allegedly formed the basis
for his decision to leave whereas, in that period, the Libyan
authorities showed no interest in him. The Government further argued
that the applicant's claim that he had reason to fear inhuman
treatment in Libya was not aided by the fact that he had left Libya
legally, bearing travel documents in his own name and that, according
to his statements, his passport was checked at the Libyan border.
While
the Government conceded that the applicant's involvement in the
Rotterdam jihad trial was discussed in the media, they submitted that
his acquittal also received broad media coverage. The Government felt
that the mere fact that the trial attracted considerate attention was
not sufficient reason to conclude that it was plausible that upon his
return, in the light of the current situation in Libya, the applicant
would necessarily be subjected to treatment contrary to Article 3 of
the Convention.
The
Government did admit that the general human rights situation in Libya
still gave cause for concern. However, according to the Government,
there was no justification for assuming that the applicant had
established that he could expect treatment prohibited by Article 3
solely on the basis of a description of the human rights situation in
Libya. The suppositions, conjecture and speculation put forward by
the applicant in the course of the proceedings did in no way allow
for this conclusion. The Government submitted that they did not
possess such specific and clear information on what the applicant
could expect upon his return to Libya that they would be obliged to
halt his expulsion. Not a single concrete fact had been adduced that
would demonstrate that the applicant had been specifically targeted
by the Libyan authorities. The fact that one could not rule out that
the applicant might be regarded as an object of suspicion was,
in the Government's opinion, no obstacle for expulsion.
As
regards the moratorium on expulsions to Libya adopted on 7 July
2006, the Government explained that when it expired on 30 June
2007 it had practically reached its maximum duration of one year as
allowed under article 43 of the Aliens Act 2000. It had furthermore
lost its raison d'être by that time, as it had been
adopted with a view to further investigations under the auspices of
the Minister of Foreign Affairs and it had become clear that the
latter did not dispose of any further means of investigation. The
expiration of the moratorium did, however, not mean that the
Government considered that the statement, as set out in the official
country assessment report of 20 November 2002,
that – in case an unsuccessful asylum seeker was
detained after having returned to Libya – ill-treatment or
torture during detention could not be excluded, would no longer be
valid. However, this statement did not suggest that each rejected
asylum seeker, upon expulsion to Libya, was exposed to a real risk of
being subjected to treatment in breach of Article 3 of the
Convention. It remained for the asylum seeker to demonstrate the
existence of such a risk, although the claims of Libyan asylum
seekers were accepted as reliable sooner than usual, given the
limitation in checking those claims against what was known about the
general situation in Libya.
The
respondent Government maintained their conclusion that it had not
been established that, if expelled to Libya, the applicant would run
a real risk of being subjected to treatment contravening Article 3 of
the Convention.
B. Third-party interveners
1. Comments submitted jointly by the Governments of
Lithuania, Portugal, Slovakia and the United Kingdom
The
Governments of Lithuania, Portugal, Slovakia and the United Kingdom
observed that in the Chahal v. the United Kingdom judgment
(15 November 1996, Reports of Judgments and Decisions
1996 V) the Court had stated the principle that in view of the
absolute nature of the prohibition of treatment contrary to Article 3
of the Convention, the risk of such treatment could not be weighed
against the reasons (including the protection of national security)
put forward by the respondent State to justify expulsion. Yet because
of its rigidity that principle had caused many difficulties for the
Contracting States by preventing them in practice from enforcing
expulsion measures.
The
Governments observed in that connection that whilst Contracting
States could obtain diplomatic assurances that an applicant would not
be subjected to treatment contrary to the Convention, the Court had
held in the above-mentioned Chahal case that Article 3
required examination of whether such assurances would achieve
sufficient practical protection. As had been shown by the opinions of
the majority and the minority of the Court in that case, identical
assurances could be interpreted differently. Furthermore, it was
unlikely that any State other than the one of which the applicant was
a national would be prepared to receive into its territory a person
suspected of terrorist activities. In addition, the possibility of
having recourse to criminal sanctions against the suspect did not
provide sufficient protection for the community. The individual
concerned might not commit any offence (or else, before a terrorist
attack, only minor ones) and it could prove difficult to establish
his involvement in terrorism beyond reasonable doubt, since it was
frequently impossible to use confidential sources or information
supplied by intelligence services. Other measures, such as detention
pending expulsion, placing the suspect under surveillance or
restricting his freedom of movement provided only partial protection.
Terrorism
seriously endangered the right to life, which was the necessary
precondition for enjoyment of all other fundamental rights. According
to a well-established principle of international law, States could
use immigration legislation to protect themselves from external
threats to their national security. The Convention did not guarantee
the right to political asylum. This was governed by the 1951
Convention relating to the Status of Refugees, which explicitly
provided that there was no entitlement to asylum where there was a
risk for national security or where the asylum seeker had been
responsible for acts contrary to the principles of the United
Nations. Moreover, Article 5 § 1 (f) of the Convention
authorised the arrest of a person “against whom action is being
taken with a view to deportation...”, and thus recognised the
right of States to deport aliens.
It
was true that the protection against torture and inhuman or degrading
treatment or punishment provided by Article 3 of the Convention was
absolute. However, in the event of expulsion, the treatment in
question would be inflicted not by the signatory State but by the
authorities of another State. The signatory State was then bound by a
positive obligation of protection against torture implicitly derived
from Article 3. Yet in the field of implied positive obligations the
Court had accepted that the applicant's rights must be weighed
against the interests of the community as a whole.
In
expulsion cases the degree of risk in the receiving country depended
on a speculative assessment. The level required to accept the
existence of the risk was relatively low and difficult to apply
consistently. Moreover, Article 3 of the Convention prohibited not
only extremely serious forms of treatment, such as torture, but also
conduct covered by the relatively general concept of “degrading
treatment”. And the nature of the threat presented by an
individual to the signatory State also varied significantly.
In
the light of the foregoing considerations, the intervening
Governments argued that, in cases concerning the threat created by
international terrorism, the approach followed by the Court in the
Chahal case (which did not reflect a universally recognised
moral imperative and was in contradiction with the intentions of the
original signatories of the Convention) had to be altered and
clarified. In the first place, the threat presented by the person to
be deported must be a factor to be assessed in relation to the
possibility and the nature of the potential ill-treatment. That would
make it possible to take into consideration all the particular
circumstances of each case and weigh the rights secured to the
applicant by Article 3 of the Convention against those secured to all
other members of the community by Article 2. Secondly,
national-security considerations had to influence the standard of
proof required of the applicant. In other words, if the respondent
State adduced evidence that there was a threat to national security,
stronger evidence had to be adduced to prove that the applicant would
be at risk of ill-treatment in the receiving country. In particular,
the individual concerned had to prove that it was “more likely
than not” that he would be subjected to treatment prohibited by
Article 3. That interpretation was compatible with the wording of
Article 3 of the United Nations Convention against Torture, which had
been based on the case-law of the Court itself, and took account of
the fact that in expulsion cases it was necessary to assess a
possible future risk.
2. Comments submitted by the AIRE Centre
In
their comments, the AIRE Centre drew attention to a number of
declarations, resolutions and other pronouncements made by the
various bodies of the Council of Europe other than the Court which,
taken together, formed a consensus that made clear that a State party
to the Convention could not remove an individual regardless of the
threat he or she posed once it had been established that his or her
refoulement would lead to a real risk of that individual being
exposed to treatment prohibited by Article 3 of the Convention.
Pointing
out that all Council of Europe Member States were also parties to the
International Covenant on Civil and Political Rights (“ICCPR”),
the AIRE Centre further referred to General Comments and case-law of
the Human Rights Committee, which had been established by the United
Nations under the First Optional Protocol to the ICCPR. From this
material it was apparent that the Human Rights Committee
unambiguously considered as absolute the ban on expulsion of
individuals to face treatment that might violate Article 7 of the
ICCPR, which provision contained a prohibition of torture and cruel
treatment or punishment.
Finally,
the conclusion that the rule prohibiting expulsion to face torture or
ill-treatment constituted a rule of customary international law had
been drawn by many distinguished publicists in academic literature as
well as by a multitude of international bodies. Thus, the AIRE Centre
submitted, the rule was binding on all States, even those which were
not a party to any international agreement. The rule had arguably
also attained the status of ius cogens, meaning that it had
become a peremptory, non-derogable norm of international law.
3. Comments submitted jointly by Amnesty International
Ltd., the Association for the Prevention of Torture, Human Rights
Watch, the International Commission of Jurists, Interights and
Redress
These
interveners focused on the principle of non-refoulement as enshrined
in various instruments and interpreted by international courts.
As
to the nature and degree of the risk of torture or ill-treatment that
triggered the refoulement prohibition, the interveners inter alia
referred to the case-law of the Committee against Torture, according
to which, in the assessment of the question whether an individual was
personally at risk, particular attention was paid to any evidence
that he or she belonged, or was perceived to belong, to an
identifiable group which in the receiving country had been targeted
for torture or ill-treatment. Organisational affiliation was a
particularly important factor in cases where the individual belonged
to a group which had been designated as a “terrorist” or
“separatist” group, threatening the security of the State
and for this reason targeted for particularly harsh forms of
repression. In such cases, the prohibition of refoulement could come
into play even if there was no evidence that the person concerned had
been ill-treated in the past or had been personally sought by the
authorities of the State of return, or when the general human rights
situation in that country had improved. Instead, the Committee
against Torture focused on the assessment of how the State in
question treated members of these groups and whether sufficient
evidence had been provided that that State would believe the
particular individual to be associated with the targeted group. In
this latter context, the nature and profile of the individual's
activities in his or her country of origin or abroad, as well as the
amount of publicity surrounding his or her case, were particularly
important factors.
Because
of the specific nature of torture or ill-treatment, it had been
generally recognised by the Strasbourg Court and other tribunals that
the burden of proof could not rest with the person alleging it alone,
the more so as the person concerned and the State did not always have
equal access to the evidence. It had therefore been considered
sufficient for the individual to make out an “arguable”
or “prima facie” case of the risk of torture or
ill-treatment for the refoulement prohibition to be triggered, with a
subsequent burden on the expelling State of refuting that claim.
The
view, as acknowledged by the Court in the case of Chahal
(cited above), that diplomatic assurances did not suffice to offset
an existing risk of torture was shared by a growing number of
international human rights bodies and experts. According to the
interveners, no “compensating measures” could affect the
peremptory ius cogens nature of the prohibition against
torture, and the obligations to prevent its occurrence, which were
plainly unaffected by bilateral agreements.
4. Comments submitted jointly by Liberty and Justice
These
interveners stressed the unconditional nature of Article 3 of the
Convention, meaning that the prohibition of refoulement to
ill-treatment applied regardless of the behaviour displayed, or
activities engaged in, by the individual concerned. The Strasbourg
Court had consistently subscribed to this view; it had been
replicated in other international and regional human rights
instruments; and had been confirmed by national as well as
international tribunals such as, for instance, the Supreme Court of
New Zealand, the Committee against Torture, the UN Human Rights
Committee and the Inter-American Commission on Human Rights.
National
security concerns being merely examples of the consequences of
possible activities of the individual, alleged terrorist activity
which might give rise to such concerns was thus not qualitatively
different from any other undesirable, dangerous or criminal conduct.
Accordingly, in assessing whether or not the removal of a person
would expose him or her to treatment contrary to Article 3 in the
receiving country, there was no room either for taking into account
the fact, nature or degree of the national security threat posed by
the person concerned or for a balancing exercise in which national
security concerns were weighed against the risk of ill-treatment.
Different means of countering a national security threat were
available to States, without it being necessary to resort to removal
to torture or other ill-treatment.
Any
change in this approach would amount to a dilution of a fundamental
human right in the name of the fight against terrorism and would
ultimately have a long-term corrosive effect on democratic values and
the Convention as a whole.
C. The Court's assessment
1. Article 3 of the Convention
(a) General principles
The
Contracting States have the right, as a matter of well established
international law and subject to their treaty obligations, including
the Convention, to control the entry, residence and expulsion of
aliens, and the right to political asylum is not explicitly protected
by either the Convention or its Protocols. However, expulsion by a
Contracting State may give rise to an issue under Article 3, and
hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the
individual concerned, if deported, faces a real risk of being
subjected to treatment contrary to Article 3. In such a case, Article
3 implies an obligation not to deport the person in question to that
country (see, most recent, Abdolkhani and
Karimnia v. Turkey, no.
30471/08, § 72, ECHR 2009 ...).
In assessing whether there would be a violation of
Article 3 if a Contracting State were to expel an individual to
another State, the Court will apply the general principles as set out
in its settled case-law (see, among other authorities, Saadi v.
Italy [GC], no. 37201/06, §§ 124-133, ECHR 2008 ...).
In this judgment the Court has reiterated the absolute nature of the
prohibition under Article 3, irrespective of the conduct of the
person concerned, however undesirable or dangerous this may be. The
Court has also reaffirmed the principle that it is not possible to
weigh the risk of ill-treatment against the reasons put forward for
the expulsion in order to determine whether the responsibility of a
State is engaged under Article 3, and emphasised that “the
existence of domestic laws and accession to international treaties
guaranteeing respect for fundamental rights in principle are not in
themselves sufficient to ensure adequate protection against the risk
of ill-treatment where reliable sources have reported practices
resorted to or tolerated by the authorities which are manifestly
contrary to the principles of the Convention” (see Saadi,
cited above, §§ 137-141 and 147 in fine).
The
Court wishes to stress once more that it is acutely conscious of the
difficulties faced by States in protecting their populations from
terrorist violence and that this makes it all the more important to
underline that Article 3 enshrines one of the most fundamental values
of democratic societies. Unlike most of the substantive clauses of
the Convention and of Protocols Nos. 1 and 4, Article 3 makes no
provision for exceptions and no derogation from it is permissible
under Article 15 § 2 notwithstanding the existence of a public
emergency threatening the life of the nation. Even in the most
difficult of circumstances, such as the fight against terrorism, and
irrespective of the conduct of the person concerned, the Convention
prohibits in absolute terms torture and inhuman or degrading
treatment and punishment (A. and Others v. the United Kingdom
[GC], no. 3455/05, § 126, ECHR 2009 ...).
(b) Application to the facts of the
present case
As the applicant has not yet been expelled, owing to
an interim measure under Rule 39 of the Rules of Court indicated by
the Court (see above § 4), the material date for the assessment
of the risk of ill-treatment claimed by the applicant is that of the
Court's consideration of the case (see Mamatkulov and Askarov v.
Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR
2005 I).
The
applicant fears detention and ill-treatment in Libya on account of
his political opposition activities, and the nature of the charges
for which he had been tried in the Netherlands and which trial had
been widely reported in the media.
The
Court observes from the materials in its possession and the materials
submitted by the parties that the overall human-rights situation in
Libya continues to give rise to serious concerns. Where it concerns
the position of persons detained in Libya, materials from both
governmental and non governmental sources indicate the existence
of a real risk for detainees in Libya to be subjected to torture
and/or ill-treatment (see above §§ 90, 92, 104, 105 and
109) which – according to the most recent report of the USA
Department of State – are said to occur routinely (see above
§ 109).
As
to the risk that the applicant will be detained if expelled to Libya,
the Court notes that, in the applicant's own submissions, the
opposition group for which he had been active had started having
problems with the Libyan regime as from late 1992 or early 1993
whereas he had not encountered any problems from the side of the
Libyan authorities when he left Libya at the end of 1994 via an
official border crossing-point, holding his own authentic passport.
As apparently persons leaving or entering Libya are subjected to
strict controls by border control officials, the Court considers that
in these circumstances it has not been established that the applicant
had attracted the negative attention of the Libyan authorities on
account of his alleged opposition activities prior to his departure
from Libya.
Where
it concerns the risk of the applicant being detained in Libya for
having stood trial in the Netherlands on suspicion of involvement in
an Islamic extremist network active in the Netherlands, the Court
notes that the applicant was acquitted in these proceedings. However,
these criminal proceedings attracted considerable media attention and
the applicant's name and nationality were disclosed in several
printed media reports. The Court also notes that on 9 November 2005,
shortly after the prosecution had withdrawn its appeal against the
applicant's acquittal in the criminal proceedings, the Libyan mission
in the Netherlands was informed by the Aliens Police Department that
the applicant had been placed in aliens' detention for removal
purposes.
The
Court further notes that, according to reports of the Netherlands
Ministry of Foreign Affairs and the United States Department of
State, the Libyan authorities oppose militant forms of Islam and
that, according to information gathered by the Dutch Refugee Council,
the Libyan authorities often have a good insight in the activities
and contacts of Libyans abroad. Against this background and the
strict controls of persons seeking to enter Libya, the Court
considers it sufficiently plausible for the purposes of Article 3 of
the Convention that the applicant would be identified and detained
for questioning after his arrival in Libya entailing a real risk of
being subjected to treatment in violation of Article 3 at the hands
of the Libyan authorities.
In
view of the above, the Court considers that substantial grounds have
been shown for believing that the applicant would face a real risk of
treatment proscribed by Article 3 of the Convention if expelled to
Libya. Given this finding, the Court does not find it necessary to
examine the remaining issues raised by the applicant under this
provision.
The
Court finds therefore that, in the circumstances of the present case,
the applicant's expulsion to Libya would breach Article 3 of the
Convention.
2. Article 13 of the Convention
The
Court reiterates at the outset that Contracting States have the
right, as a matter of well established international law and
subject to their treaty obligations, including the Convention, to
control the entry, residence and expulsion of aliens, and that the
right to political asylum is not explicitly protected by either the
Convention or its Protocols.
Accordingly,
the decision to deny the applicant the status of refugee as well as
the decision to impose an exclusion order on him did not, as such,
concern a right or freedom guaranteed under the Convention.
The
question remains, however, whether the applicant did have an
effective remedy where it concerned his claim under Article 3 of the
Convention in relation to his expulsion to Libya.
The
Court reiterates that Article 13 guarantees the availability at the
national level of a remedy to enforce – and hence to allege
non-compliance with – the substance of the Convention rights
and freedoms in whatever form they might happen to be secured in the
domestic legal order and bearing in mind that Contracting States are
afforded some discretion as to the manner in which they conform to
their obligations under this provision (see Shamayev and Others v.
Georgia and Russia, no. 36378/02, § 444, ECHR 2005 III.
For Article 13 to be applicable, the complaint under a substantive
provision of the Convention must be arguable. In view of the above
finding under Article 3, the Court considers that the applicant's
claim under Article 3 was “arguable” and, thus, Article
13 was applicable in the instant case.
The
Court further reiterates that the remedy required by Article 13 must
be effective both in law and in practice, in particular in the sense
that its exercise must not be unjustifiably hindered by the acts or
omissions of the authorities of the respondent State (see Shamayev
and Others, cited above, § 447). The Court is not called
upon to review in abstracto the compatibility of the relevant
law and practice with the Convention, but to determine whether there
was a remedy compatible with Article 13 of the Convention available
to grant the applicant appropriate relief as regards his substantive
complaint (see, among other authorities, G.H.H. and Others
v. Turkey, no. 43258/98, § 34, ECHR 2000-VIII). The
“effectiveness” of a “remedy” within the
meaning of Article 13 does not depend on the certainty of a
favourable outcome for the applicant (Čonka v. Belgium,
no. 51564/99, § 75, ECHR 2002 I; and Onoufriou v.
Cyprus, no. 24407/04, §§ 119-121, 7 January 2010).
The
Court further points out that the scope of the State's obligation
under Article 13 varies depending on the nature of the applicant's
complaint under the Convention. Given the irreversible nature of the
harm that might occur if the alleged risk of torture or ill-treatment
materialised and the importance which the Court attaches to Article
3, the notion of an effective remedy under Article 13 requires (i)
independent and rigorous scrutiny of a claim that there exist
substantial grounds for believing that there was a real risk of
treatment contrary to Article 3 in the event of the applicant's
expulsion to the country of destination, and (ii) the provision of an
effective possibility of suspending the enforcement of measures whose
effects are potentially irreversible (see Shamayev and Others,
cited above, § 460; Olaechea Cahuas v. Spain, no.
24668/03, § 35, ECHR 2006-X; and Salah Sheekh v. the
Netherlands, no. 1948/04, § 154, ECHR 2007 I).
Judicial
review proceedings constitute, in principle, an effective remedy
within the meaning of Article 13 of the Convention in relation to
complaints in the context of expulsion, provided that the courts can
effectively review the legality of executive discretion on
substantive and procedural grounds and quash decisions as appropriate
(see Slivenko v. Latvia (dec.) [GC], no. 48321/99, §
99, ECHR 2002-II).
In
the present case the Court notes that the applicant's complaint under
Article 3 was examined both in the proceedings on his asylum request
which mainly concerned the question whether his fear of persecution
or treatment in violation of Article 3 of the Convention in Libya was
justified, as well as in the subsequent yet partly overlapping
proceedings on the applicant's challenge of the exclusion order
imposed, which mainly concerned the tolerability of the applicant's
presence in the Netherlands. In both sets of proceedings, the
Minister's respective decisions to reject the applicant's asylum
request and to impose an exclusion order were reviewed by a court in
proceedings on appeal and requests for a provisional measure brought
by the applicant and, as regards his claim under Article 3, the Court
has found no indication that the applicant was hindered in any way
from challenging the Minister's decisions and to submit whatever he
found relevant for the outcome.
Concerning
the underlying materials of the AIVD report of 9 February 2005,
the Court notes that with the parties' consent these materials were
disclosed to the provisional-measures judge of the Regional Court of
The Hague which in the Court's view has not compromised the
independence of the domestic courts involved in the proceedings
concerned and neither can it be said that these courts have given
less rigorous scrutiny to the applicant's Article 3 claim (see,
mutatis mutandis, Lupsa v. Romania, no. 10337/04, §
41, ECHR 2006 VII). Furthermore, the Court notes that this
report and the underlying materials did not, as such, concern the
applicant's fear of being subjected to ill-treatment in Libya but
whether he was posing a threat to the Netherlands national security.
The
Court is therefore of the opinion that in respect of his Article 3
grievance the applicant had available to him a remedy satisfying the
requirements of Article 13 of the Convention. There has accordingly
been no violation of this provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
The
applicant claimed 387.54 euros (“EUR”) in respect of
pecuniary damage. The applicant explained that this amount concerned
medical costs incurred by him due to the fact that, after his
acquittal in the criminal proceedings, the Netherlands authorities
did not return his aliens' identity card which enabled him to obtain
health insurance. His claim under this heading consisted of the
following items:
–
EUR 45.10 for dental care (cleaning);
–
EUR 12.99 for a mechanical massage device; and
–
EUR 329.45 for a fitness club membership fee.
The
Government submitted that there was no causal link between the
claimed pecuniary damage and the alleged violations of the
Convention. They further submitted that even if the applicant had had
the right to care pursuant to the rules on medical care for asylum
seekers, these costs would not have been reimbursed. They thus
requested the Court not to make any award under this head.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention. In view of its above conclusion, it finds that there is
no direct causal link between the violation found under Article 3 of
the Convention and the pecuniary damage claimed by the applicant.
Consequently, the Court makes no award under Article 41 of the
Convention for pecuniary damage.
2. Non-pecuniary damage
The
applicant claimed an amount of EUR 15,000 or such amount as the Court
deemed equitable in respect of non pecuniary damage He submitted
that the Government's failure to recognise that his expulsion would
constitute a violation of Article 3 of the Convention had led to
tremendous anxiety and suffering on the part of the applicant and his
family, which could not be compensated by a finding of a violation
alone.
The
Government contested this claim, submitting that the alleged
psychological condition of the applicant had remained wholly
unsubstantiated.
The
Court reiterates that it is able to make awards by way of the just
satisfaction provided for in Article 41 where the loss or damage on
which a claim is based has been caused by the violation found, but
that the State is not required to make good damage not attributable
to it (see Saadi v. Italy [GC], no. 37201/06, § 186,
ECHR 2008 ...).
In
the present case, the Court has found that the applicant's expulsion
to Libya would breach Article 3 of the Convention. On the other hand,
it has not found a violation of Article 13 of the Convention.
With
regard to the non-pecuniary damage claimed by the applicant, the
Court, although it accepts that the applicant may have experienced a
certain degree of distress on account of being uncertain about the
outcome of both the domestic and the Strasbourg proceedings, the
Court considers that the finding that his expulsion, if carried out,
would breach Article 3 of the Convention constitutes sufficient just
satisfaction.
B. Costs and expenses
The
applicant requested reimbursement of the costs and expenses incurred
during the domestic proceedings as well as the proceedings before the
Court, which, according to bills submitted, amounted to EUR 7,422.25.
The Government accepted that the costs claimed were specified and
that the costs claimed for legal fees and legal representation were
reasonable, but considered that the amount of EUR 952 claimed for
costs of an expert opinion sought by the applicant had not been
necessarily incurred.
According
to the Court's established case-law, an award can be made in respect
of costs and expenses incurred by the applicant only in so far as
they have been actually and necessarily incurred and are reasonable
as to quantum (see (see Saaid, cited above, § 191).
The
Court notes that the expert opinion referred to by the Government
concerns a report which formed a part of unsolicited submissions
filed by the applicant and which were not accepted for inclusion in
the case file, in accordance with Rule 38 § 1 of the Rules of
Court. Consequently, no award under Article 41 of the Convention in
respect of these costs is made.
As
regards the remainder of the applicant's claim under this heading,
the Court is satisfied that these costs and expenses were necessarily
and actually incurred, and were reasonable. It therefore awards the
remainder of EUR 6,470.25 for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that the applicant's expulsion to Libya
would be in violation of Article 3 of the Convention;
Holds that there has been no violation of
Article 13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,470.25
(six thousand four hundred and seventy euros and twenty-five cents)
in respect of costs and expenses, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
