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RAMZY v. THE NETHERLANDS - 25424/05 [2010] ECHR 1132 (20 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1132.html
Cite as:
[2010] ECHR 1132
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THIRD
SECTION
CASE OF RAMZY v. THE NETHERLANDS
(Application
no. 25424/05)
JUDGMENT
(Striking
out)
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 Ramzy 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. 25424/05) 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 an Algerian national, Mr
Mohammed Ramzy (“the applicant”), on 15 July 2005.
The
applicant was represented by Mr M. Ferschtman and Mr M.F.
Wijngaarden, both lawyers practising in Amsterdam, and Ms B.J.P.M.
Ficq, a lawyer practising in Haarlem. 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, if expelled to Algeria, he would be exposed
to a real risk of treatment contrary to Article 3 of the Convention.
In addition, he alleged a violation of Article 13 of the Convention
for not having had an effective remedy in respect of the exclusion
order.
On
15 July 2005, the Acting President of the Chamber to which the case
had been allocated decided, in the interests of the parties and the
proper conduct of the proceedings before the Court, to indicate to
the Government of the Netherlands, under Rule 39 of the Rules of
Court, that the applicant should not be deported to Algeria until
further notice. The Acting President further decided to give notice
of the application to the respondent Government.
On
27 May 2008 – having noted the observations submitted by the
respondent Government, the observations in reply submitted by the
applicant, as well as the comments submitted by Governments of
Lithuania, Portugal, Slovakia and the United Kingdom, and the
comments submitted by 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 – the Court declared the application admissible.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1982 and, at the time of the introduction of
the application, was detained in Ter Apel, the Netherlands.
A. The applicant's first and second asylum requests
On
30 January 1998, after having been apprehended by the Flushing
brigade of the Royal Military Constabulary (Koninklijke
Marechaussee) whilst he was attempting to leave for the United
Kingdom in a lorry, the applicant applied for asylum in the
Netherlands. During his interview by the Netherlands immigration
authorities, the applicant stated that he had largely been brought up
in an orphanage in Algeria, that he had never known his natural
parents and that he had spent a short period with foster parents who
gave him the name Ramzy. The applicant explained that he had left
Algeria given the general unsettled and dangerous situation there. He
had not been involved in any political activities against the
Algerian authorities. He further claimed that, a long time before
leaving Algeria, he had been approached by the Islamic fundamentalist
movement FIS (Front Islamique du Salut). The applicant did not
want to divulge any further details about this claim.
As
the applicant did not hold any travel documents and had not
immediately applied for asylum upon his arrival in the Netherlands,
the Deputy Minister of Justice (Staatssecretaris van Justitie)
rejected the applicant's asylum request on 7 October 1998. The
applicant did not avail himself of the possibility to appeal this
decision, which thus became final.
On
9 September 1999, the applicant filed a second asylum application,
submitting that he could not return to Algeria because young people
were being killed there, that he had no one in Algeria any more and
that he wished to build a new life in the Netherlands. He further
stated that he had never had any problems with the Algerian
authorities.
On
14 September 1999, the Deputy Minister dismissed this second asylum
request as a repeat application based on similar grounds to those
relied upon in a previous asylum application that had been rejected
in a final decision. The applicant unsuccessfully challenged this
decision in appeal proceedings. The final decision on the second
asylum application was taken on 6 October 1999 by the Regional Court
(arrondissementsrechtbank) of The Hague sitting in Zwolle. The
applicant continued to reside illegally in the Netherlands.
B. Domestic intelligence reports
On
19 December 2001 and 22 April 2002, respectively, the Netherlands
National Security Service (Binnenlandse Veiligheidsdienst –
“BVD”) sent an official report (ambtsbericht) to
the national public prosecutor responsible for combating terrorism
(landelijk officier van justitie terrorismebestrijding),
containing information about an Islamic extremist group active in the
Netherlands and which was associated with Islamic terrorist
organisations abroad. In the latter official report, the applicant
was mentioned as forming a part of this group in the Netherlands.
In
a subsequent official report of 24 April 2002, the Head of the BVD
informed the national public prosecutor responsible for combating
terrorism of the mobile telephone number that was being used by the
applicant.
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”).
C. The criminal proceedings against the applicant
On
12 June 2002, the applicant was arrested in the Netherlands and
detained on remand on suspicion of, inter alia, participation
in (the activities of) a criminal organisation pursuing the aims of
aiding and abetting the enemy in the conflict opposing, on the one
hand, the United States of America, the United Kingdom and their
allies – including the Netherlands – and, on the other,
Afghanistan (under Taliban rule until January 2002) and/or the
Taliban and their allies (Al-Qaeda and/or other pro-Taliban
combatants) and which organisation was further involved in
drug-trafficking, forgery of (travel) documents, providing third
persons with forged (travel) documents, and trafficking in human
beings.
The
basis for the suspicions against the applicant as well as eleven
co-accused was formed by official reports that had been drawn up by
the BVD/AIVD, the content of telephone conversations that had been
intercepted by the BVD/AIVD, and books, documents, video and audio
tapes that had been found and seized in the course of searches
carried out.
The
applicant and eleven co-suspects were subsequently formally charged
and summoned to appear before the Rotterdam Regional Court in order
to stand trial.
In
its judgment of 5 June 2003, following public trial proceedings that
had attracted considerable media attention, the Rotterdam Regional
Court acquitted the applicant of all charges, finding that these had
not been legally and convincingly substantiated, and ordered the
applicant's release from pre-trial detention.
The
prosecution initially lodged an appeal against this judgment but
withdrew it on 6 September 2005, before the trial proceedings on
appeal had commenced.
D. The proceedings on the applicant's third asylum application,
the decision to impose an exclusion order on him, and his placement
in aliens' detention
Immediately
after his release from pre-trial detention on 5 June 2003, the
applicant was apprehended by the aliens' police
(vreemdelingenpolitie) and placed in aliens' detention for
expulsion purposes. On the same day, he filed a third application for
asylum in the Netherlands.
On
24 June 2003, the applicant was informed of the intention (voornemen)
of the Minister for Immigration and Integration (Minister voor
Vreemdelingenzaken en Integratie – “the Minister”)
– as well as the reasons for this intention – to reject
his third asylum application.
On
21 July 2003, pursuant to Article 59 § 4 of the 2000 Aliens Act
(Vreemdelingenwet), the applicant was released from aliens'
detention as no decision had been taken by the Minister on his third
asylum application within 42 days. The applicant was ordered to leave
the Netherlands.
On
26 February 2004, using a forged Dutch passport, the applicant
travelled by air from Cologne (Germany) to Istanbul (Turkey) where he
applied for asylum. The Turkish authorities refused to take his
asylum application into consideration and, on 27 February 2004, sent
him back to Germany, where on 8 March 2004 he applied for asylum
under the name stated in the forged passport and which he had not
used previously.
On
14 May 2004, under the provisions of the Dublin Convention of 15 June
1990, the German authorities requested the Netherlands to accept
responsibility for the applicant's asylum application. On 16 June
2004, the Netherlands authorities accepted that responsibility and,
on 15 July 2004, the applicant was transferred to the Netherlands,
where he was immediately placed in aliens' detention.
On
14 July 2004, the AIVD drew up an individual official report
(individueel ambtsbericht) on the applicant, in which it was
concluded that he continued to pose a threat to national security.
On
5 August 2004, he was notified of the Minister's fresh intention
to reject his asylum application, on which the applicant filed
comments in reply on 19 and 20 August 2004.
On
23 August 2004, following the AIVD official report of 14 July
2004, the applicant was interviewed by a senior official of the
police in his place of residence in connection with a proposal to
impose an exclusion order (ongewenstverklaring) on him. During
this hearing, the applicant declared inter alia that for
reasons of common knowledge about the situation there he did not wish
to return to Algeria, that he knew that he could not stay in the
Netherlands, that he had no reasons to remain in the Netherlands and
that he had no objections to moving to an Islamic country.
On
25 August 2004, the Minister rejected the applicant's third asylum
application. The applicant was further ordered to leave the
Netherlands within 24 hours and informed that an appeal would not
have suspensive effect as regards his expulsion from the Netherlands.
On 26 August 2004, the applicant filed an appeal to the Regional
Court of The Hague as well as a request for a provisional measure
(voorlopige voorziening) in the form of an injunction on his
expulsion pending the determination of his appeal.
By
decision of 14 September 2004 and based mainly on the content of the
official reports of 22 April 2002 and 14 July 2004, the Minister
imposed an exclusion order on the applicant. The Minister held that
the applicant posed a threat to national security and that imposing
an exclusion order on him was in the interests of the Netherlands'
international relations.
On
22 September 2004, the applicant filed an objection (bezwaar)
against this decision with the Minister. He further requested the
Regional Court of The Hague to extend the scope of his request for a
provisional measure of 26 August 2004 in that the injunction sought
would also cover the duration of the proceedings on his objection
against the decision to impose an exclusion order on him.
On
2 November 2004, the provisional-measures judge
(voorzieningenrechter) of the Regional Court of The Hague
sitting in Haarlem granted the applicant's request for an injunction
and ordered that he was not to be expelled pending the determination
of his appeal of 26 August 2004 against the refusal to grant him
asylum. The provisional measures judge further suspended the
Minister's decision of 14 September 2004 to impose an exclusion
order on the applicant.
On
10 November 2004, the Minister filed an appeal against the ruling of
2 November 2004 – in so far as it related to the suspension of
the decision of 14 September 2004 – with the Administrative
Jurisdiction Division (Afdeling Bestuursrechtspraak) of the
Council of State (Raad van State), and requested the President
of the Division, by way of an provisional measure, to lift the
suspension of the decision of the decision of 14 September 2004.
On
16 November 2004, the applicant was heard before an official board of
inquiry (ambtelijke commissie) on his objection of
22 September 2004 against the decision to impose an exclusion
order on him.
On
19 November 2004, by way of a provisional measure as requested by the
Minister on 10 November 2004, the President of the Administrative
Jurisdiction Division lifted the suspension of the decision to impose
an exclusion order on the applicant.
By
judgment of 23 December 2004, following a hearing held on 2 December
2004, the Regional Court of The Hague sitting in Haarlem upheld the
applicant's appeal of 26 August 2004, quashed the Minister's negative
decision of 25 August 2004 on the applicant's third asylum
application, and ordered the Minister to take a fresh decision on the
matter.
On
20 January 2005, the Minister lodged an appeal against this ruling
with the Administrative Jurisdiction Division.
In
a decision of 11 February 2005, following a hearing on 6 January
2005, the Administrative Jurisdiction Division quashed the decision
of 2 November 2004 of the provisional-measures judge in so far
as it suspended the decision to impose an exclusion order on the
applicant. It found that this part of the decision had been taken in
breach of due process and fundamental principles of law. The Division
agreed to examine the Minister's appeal, which it subsequently
considered well-founded.
On
22 February 2005, the applicant filed a new request for a provisional
measure with the Regional Court of The Hague, requesting a suspension
of the Minister's decision of 14 September 2004 to impose an
exclusion order. His request was rejected on 1 April 2005 by the
provisional-measures judge of the Regional Court of The Hague sitting
in Haarlem.
On
17 May 2005, the applicant lodged an appeal with the Regional Court
of The Hague against the continuation of his placement in aliens'
detention.
On
3 June 2005, the Regional Court of The Hague sitting in Groningen
rejected the applicant's appeal of 17 May 2005. It held that the
applicant's placement in aliens' detention continued to be justified
in that there remained sufficient prospects for expulsion within a
reasonable time.
On
6 July 2005, the Administrative Jurisdiction Division accepted the
Minister's appeal of 20 January 2005, quashed the impugned judgment
of 23 December 2004 and dismissed the applicant's appeal of 26 August
2004 against the negative decision on his third asylum application.
No further appeal lay against this decision.
On
15 July 2005, the applicant lodged the present application with the
Court. On the same date and at the applicant's request, the Acting
President of the Third Section of the Court decided to indicate to
the respondent Government under Rule 39 of the Rules of Court that
the applicant should not be removed to Algeria until further notice.
On
21 July 2005, the applicant filed an appeal with the Regional Court
of The Hague on grounds of the Minister's failure to determine in a
timely manner his objection of 22 September 2004 against the decision
to impose an exclusion order on him.
In
a judgment given on 2 August 2005, following proceedings on a fresh
appeal against the applicant's continued placement in aliens'
detention, the Regional Court of The Hague concluded that the
detention continued to be justified in that there remained sufficient
prospects for his expulsion within a reasonable time.
On
31 August 2005, the Minister rejected the applicant's objection of
22 September 2004 against the decision to impose an exclusion
order on him. Referring to the AIVD individual official report on the
applicant of 14 July 2004, the Minister held that this decision
had been taken on correct and sufficient grounds, as he posed a
danger to national security and as this order was furthermore in the
interest of international relations.
On
12 September 2005, the Regional Court of The Hague sitting in
Amsterdam informed the applicant and the Netherlands State that it
would consider the applicant's appeal of 21 July 2005 as an appeal
against the Minister's decision of 31 August 2005. Already on 2
September 2005, the applicant had also requested the Regional Court
to order a provisional measure to the effect that the exclusion order
of 14 September 2004 be suspended.
On
5 September 2005, the applicant lodged an appeal with the Regional
Court of The Hague against his continued placement in aliens'
detention. In its judgment of 15 September 2005, the Regional Court
of The Hague sitting in Leeuwarden – noting the time spent by
the applicant in aliens' detention, the interim measure under Rule 39
of the Rules of Court indicated on 15 July 2005 and the uncertainty
as to the date when the Court would examine the merits of the
application lodged by the applicant – concluded that there were
no prospects for the applicant's expulsion from the Netherlands
within a reasonable time. Consequently, it accepted the applicant's
appeal, ordered his release from aliens' detention and awarded him an
amount of 2,660 euros (EUR) in compensation for the time he had spent
in aliens' detention after 9 August 2005. The applicant was released
on the same day.
On
17 October 2005, the provisional-measures judge of the Regional Court
of The Hague sitting in Amsterdam suspended the exclusion order
pending the determination of the applicant's appeal against the
Minister's decision of 31 August 2005.
On
17 November 2005, a hearing on the applicant's appeal was held before
the Regional Court of The Hague sitting in Amsterdam. On 22 December
2005 – the parties having consented to the appeal being
determined also on the basis of that material – the Regional
Court was given access to the material underlying the AIVD individual
official report of 14 July 2004 without that material being
disclosed to the applicant.
In
a judgment of 10 March 2006, the Regional Court of The Hague sitting
in Amsterdam rejected the applicant's appeal against the Minister's
decision of 31 August 2005.
On
18 September 2006 the Administrative Jurisdiction Division –
which, in application of articles 8:29 and 8:45 of the General
Administrative Law Act in conjunction with article 87 of the 2002
Intelligence and Security Services Act and with the applicant's
permission, had also been given access to the undisclosed material
underlying the official reports of 22 April 2002 and 14 July 2004
without that material being disclosed to the applicant –
rejected the applicant's appeal against the Regional Court's judgment
of 10 March 2006 and upheld the impugned judgment. No further appeal
lay against this decision.
E. Proceedings on the Netherlands authorities' request to the
Algerian authorities in the Netherlands to issue a laissez-passer to
the applicant for expulsion purposes
On
9 August 2001, after apparently having noted that the applicant had
not left the Netherlands voluntarily after the rejection of his
second asylum application, the Netherlands aliens police
(vreemdelingenpolitie) requested the Return Facilitation Unit
(Unit facilitering terugkeer – “UFT”) of the
Immigration and Naturalisation Department of the Ministry of Justice
to request the Algerian consular authorities in the Netherlands to
issue a laissez-passer in the name of Mohammed Ramzy for the purposes
of the applicant's expulsion to Algeria. On 2 October 2001, the
applicant was presented in person at the Algerian mission in the
Netherlands and the latter indicated that the application for a
laissez-passer would be examined.
On
20 October 2002, the applicant having been arrested in the
Netherlands on 12 June 2002 in the meantime, the Algerian authorities
informed the UFT that the applicant was not known in Algeria under
the name Mohammed Ramzy.
On
an unspecified date and in the light of new documents made available
by the applicant, the UFT sent a second request for a laissez-passer
in the name of Mohammed Ramzy to the Algerian authorities. After the
applicant's presentation in person on 26 October 2004, the Algerian
authorities agreed to investigate the new request. On 14 February
2005, the Algerian authorities informed the UFT again that no such
person under the name of Mohammed Ramzy was known in Algeria. An
informal meeting in May 2005 between officials of the Netherlands
Ministry of Foreign Affairs and officials of the Algerian Embassy in
the Netherlands did not alter the outcome of the request for a
laissez-passer for the applicant.
By
letter of 12 July 2005, the Netherlands authorities presented the
applicant in writing to the Algerian authorities using another
undisclosed identity based on a copy of a birth certificate. In
accordance with the customary practice, the letter further stated
that the person concerned had previously been presented under the
name Ramzy. The Algerian authorities again agreed to investigate the
request. On 26 September 2005, the Algerian authorities informed the
UFT that the person concerned was known under this identity and was
an Algerian national. They subsequently issued a laissez-passer in
this name. To date, this laissez-passer has not been used by the
Netherlands authorities.
F. The AIVD official report of 13 November 2006
On
13 November 2006 the AIVD drew up a new official report on the
applicant, which reads:
“In the framework of the exercise of its statutory
task, the General Intelligence and Security Service holds information
from reliable sources from which it appears that Mohammed Ramzy alias
... alias ...., born on ... 1982 or on ... 1975 in... (Algeria) is
staying or has stayed in Algeria after the issuance of the official
report of 14 July 2004 with the reference 21xxxxx/01.”
This
official report was submitted by the Government to the Court on 11
December 2006 and, at the Court's request, comments on this report
were filed on behalf of the applicant on 30 January 2007 by his
representatives.
G. Further relevant developments
On
27 May 2008, the Court declared the application admissible and, by
letter of 3 June 2008, informed the parties that it was considering
the possibility to take oral evidence from the applicant as well as
from those persons on the basis of whose information the AIVD
official report of 13 November 2006 had been drawn up.
On
14 October 2008, having considered the parties' response to its
letter of 3 June 2008, the Court decide not to proceed to a
fact-finding mission and invited the parties to submit any facts or
circumstances not submitted previously which they found of relevance
for the Court's examination of the case. The parties' respective
responses to this letter were filed on 21 November 2008.
On
7 May 2009 the AIVD drew up a new official report on the applicant,
which reads in its relevant part:
“In the
framework of the exercise of its statutory task, the General
Intelligence and Security Service holds information from reliable
sources from which it appears that Mohammed Ramzy alias ... alias
...., born on ... 1982 or on ... 1975 in... (Algeria), after the
issuance of the official report of 13 November 2006 with the
reference 27xxxxx/01 ..., is staying in Algeria or has stayed there
and has made a normal life for himself there. ...”
On 30
October 2009, the Government submitted this official report to the
Court.
By
letter of 19 November 2009, the Court informed the parties of its
decision not to hold a hearing on the merits and invited them to
submit any final observations on the merits of the case which they
wished to bring to the Court's attention. In addition it requested
the applicant's representatives to inform the Court whether the
applicant had ever left the Netherlands since 15 July 2005 and
factual information about the nature of their contacts with the
applicant.
The
applicant's representatives filed, inter alia, the factual
information requested by the Court in their submissions of 19 January
and 11 February 2010. On 5 March 2010, the Government filed comments
on the factual information supplied by the applicant's
representatives.
THE LAW
PRELIMINARY
QUESTION
In
their submissions of 19 January and 11 February 2010, the applicant's
representatives informed the Court that they were unable to answer
the question whether the applicant had ever left the Netherlands
since 15 July 2005 as they were not aware of the applicant's
whereabouts. The last contact one of them had had with the applicant
had taken place in 2007 when the content of the AIVD official report
had been read out and translated to the applicant in a telephone
conversation. Fearing direct contact with the Netherlands authorities
and the consequences of the exclusion order imposed on him, the
applicant had maintained contact with his representatives mainly but
not exclusively via a friend, who had requested to remain anonymous.
The last time this friend had contacted the applicant's
representatives to enquire about the state of proceedings was in May
2008. Having been authorised by the applicant to represent him in the
proceedings before the Court, the applicant's representatives did
not, however, see this as a reason to discontinue the proceedings
before the Court.
The
Government submitted that the information provided by the applicant's
representatives as regards their contacts with the applicant can only
lead to the conclusion that the application must be struck out of the
Court's docket. The last direct contact between the applicant and his
counsels, by telephone only, dated back to 2007 and the last indirect
contact with an unspecified acquaintance occurred in May 2008. In the
Government's view, there are no convincing reasons for the
applicant's failure to contact his representatives, directly or
indirectly.
The
Court is of the opinion that the applicant's failure to keep his
representatives informed of his whereabouts or at least to provide
them with a means to contact him must be taken as indicating that he
has lost interest in pursuing his application. As regards the
explanation that the applicant would fear expulsion to Algeria, the
Court notes that on 15 July 2005 it has indicated to the Government
of the Netherlands, under Rule 39 of the Rules of Court, that the
applicant should not be deported to Algeria until further notice, and
it has not appeared and it has not been argued that the Government
would have disrespected this decision. Furthermore, although it is
true that the applicant did authorise Mr Ferschtman, Mr Wijngaarden
and Ms Ficq to represent him in the proceedings before the Court, it
considers that this authority does not by itself justify pursuing the
examination of the case. Given the impossibility of establishing any
communication with the applicant, the Court considers that his three
representatives cannot now meaningfully pursue the proceedings before
it (see, mutatis mutandis, Sevgi Erdoğan v. Turkey
(striking out), no. 28492/95, 29 April 2003 and Ali v.
Switzerland, judgment of 5 August 1998, Reports of
Judgments and Decisions 1998-V, p. 2149, § 32).
In
these circumstances, the Court concludes that it is no longer
justified to continue the examination of the application within the
meaning of Article 37 § 1 (c) of the Convention. Furthermore,
the Court finds no reasons of a general character, as defined in
Article 37 § 1 in fine, which would require the
examination of the application by virtue of that Article.
Accordingly,
the case should be struck out of the list. The indication made to the
Government under Rule 39 of the Rules of Court (see above § 4)
will remain in force until the present judgment becomes final or
until the Panel of the Grand Chamber of the Court accepts any request
by one or both of the parties to refer the case to the Grand Chamber
under Article 43 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out
of the list.
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
