THIRD SECTION

DECISION

Application no 6107/07 Sebastien NZAPALI against the Netherlands

The European Court of Human Rights (Third Section), sitting on 1 7 November 2015 as a Chamber composed of:

Luis López Guerra, President, George Nicolaou , Helen Keller, Johannes Silvis, Dmitry Dedov

Branko Lubarda,

Pere Pastor Vilanova , judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 6 February 2007 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Sebastien Nzapali, is a national of the Democratic Republic of the Congo (“the DRC”) who was born in Yakoma in the DRC and lives in Brussels. He was initially represented before the Court by Ms F. K ı l ıç and subsequently by Ms I.M. Hagg, both lawyers practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

4 . The applicant ’ s asylum application was rejected, as Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 (“the 1951 Refugee Convention”), was held against him. For this reason, his wife and daughter were not eligible for lawful residence either. The proceedings which the applicant instituted against that rejection, which came to an end on 9 November 2004, were unsuccessful. Although the applicant was thus no longer staying in the Netherlands lawfully and was obliged to leave the country, it was nevertheless decided that, for the time being, he would not be expelled to the DRC, as it was accepted by the Netherlands authorities that his expulsion would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention.

5 . Meanwhile, on 2 April 2004 the Rotterdam Regional Court had found the applicant guilty of torture within the meaning of section 1 of the Convention against Torture (Implementation) Act ( Uitvoeringswet Folteringverdrag ), and had sentenced him to two and a half years ’ imprisonment.

6 . The Minister for Immigration and Integration made the applicant subject to an exclusion order ( ongewenstverklaring ) on 27 September 2004, as she considered that he constituted a danger to public order and that the imposition of such an order was in the interest of the Netherlands ’ international relations. Staying in the Netherlands whilst knowing or having serious reason to suspect that one is subject to an exclusion order constitutes a criminal offence (Article 197 of the Criminal Code ( Wetboek van Strafrecht )). In his objection to the order, the applicant argued, inter alia , that it would – once he had served his prison sentence – expose him to the risk of being arrested at any moment, notwithstanding the fact that there was nowhere else for him to go: Article 3 of the Convention stood in the way of his return to the DRC and no other country was willing to admit him. This would be even more inhumane, as he had no means of subsistence; it was apparently expected that he would spend his days as a tramp.

7 . The Minister for Immigration and Integration rejected the objection on 27 May 2005. The Minister acknowledged that, on the one hand, the applicant had not been granted lawful residence in the Netherlands and was not eligible for State-sponsored provisions and benefits, while on the other, the authorities ’ intention to expel him would not be acted upon as long as his return to the DRC involved a risk of Article 3 of the Convention being violated. However, denying him a residence permit was not considered to be disproportionate. In this context, the Minister found it relevant that there did not appear to be any special circumstances on which to base a conclusion that criminalising the applicant ’ s stay in the Netherlands, without proceeding with his expulsion within a foreseeable time frame, would be disproportionate. The exclusion order imposed on the applicant was not designed to deprive him of a residence permit which was enabling him to enjoy family life in the Netherlands. After all, neither the applicant nor the members of his family had lawful residence in the Netherlands. The fact that the applicant would or could not be expelled did not mean that his stay should be accepted. Although the applicant would not be expelled for the time being, this did not change the fact that he was still under an obligation to leave the country, and therefore required to act accordingly on his own initiative. Moreover, the interests of the State outweighed those of the applicant, who had been found guilty of the very serious offence of torture. As the applicant wished to join Dutch society, his actions equally affected the Dutch legal order. Criminalising the applicant ’ s stay in the Netherlands therefore served an important Dutch interest.

8 . The applicant ’ s appeal against that decision was rejected by the Regional Court ( rechtbank ) of The Hague, sitting in Assen on 20 February 2006. The Regional Court held, firstly, that it would be prejudicial to the proper conduct of the proceedings to include the applicant ’ s claims relating to Article 8 of the Convention in its assessment of the case. Those claims had only been presented at the hearing before the court, and had not been included in the written grounds for the appeal. The Regional Court further agreed with the Minister that it was for the Public Prosecutions Department and for the criminal courts to provide a reply to the question of how the criminal-law consequences of the exclusion order related to the fact that the applicant could not be expelled. Further, the Minister had sufficiently reasoned why the general interest outweighed the applicant ’ s individual interests. In this connection, the Regional Court attached relevance to the applicant ’ s conviction for torture and to the fact that he had not made a plausible case for his assertion that he would not be admitted to any other country.

9 . On 7 August 2006 a further appeal by the applicant was dismissed by the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ).

10 . In the meantime, criminal proceedings were instituted against the applicant on suspicion that he had committed the offence set out in Article 197 of the Criminal Code on 9 May 2006. He was found guilty by the single-judge chamber ( politierechter ) of the Roermond Regional Court on 10 October 2006 and sentenced to a suspended term of two months ’ imprisonment. The applicant lodged an appeal with the ‘ s ‑ Hertogenbosch Court of Appeal ( gerechtshof ).

B. Developments subsequent to the lodging of the application

11 . On 21 May 2007 a number of questions were put to the Government, pursuant to Rule 49 § 3 (a) of the Rules of Court. The Government were subsequently granted a number of extensions to the time-limit for replying to those questions, pending the ongoing criminal proceedings against the applicant before the ‘ s-Hertogenbosch Court of Appeal.

12 . On 27 September 2007 the Court of Appeal quashed the Regional Court ’ s judgment of 10 October 2006, as it did not agree with certain parts of it. It nevertheless also found the applicant guilty of having been in the Netherlands on 9 May 2006 whilst he knew that he was subject to an exclusion order. It rejected the applicant ’ s argument that, as he had been subject to force majeure ( overmacht ), he should not be held criminally liable. According to the Court of Appeal, this could only be said to be the case if an accused found himself or herself in a stalemate situation where his or her choice to commit a criminal offence in order to end that stalemate was, when reasonably considered, inevitable. The Court of Appeal conceded that the situation in which the applicant had found himself on 9 May 2006 came close to a stalemate – given, on the one hand, the exclusion order and, on the other, the Netherlands authorities ’ inability to expel him in view of Article 3 of the Convention, and the fact that barely any possibilities existed for the applicant to make his own arrangements to settle outside the Netherlands. Nevertheless, it had not been established that committing the criminal offence in issue had been inevitable, given that prior to 9 May 2006 the applicant had made insufficient efforts to comply with the obligation he was under to leave the country. For this reason, the Court of Appeal concluded that the applicant was criminally liable for the offence which he had committed.

13 . The Court of Appeal imposed the same sentence as the Roermond Regional Court: a suspended prison term of two months. It stated that the following factors had been crucial in determining that sentence:

(1) the imposition of the exclusion order had put the applicant in a nigh impossible situation, having regard to the implications which flowed from Article 3 of the Convention and which were known at the time of the imposition;

(2) it did not appear from the case file that the authorities had made a reasonable effort to support the applicant in leaving the country as he was obliged to do, which might have been expected given the circumstances set out under point (1) above; and

(3) it was the first time that the applicant had been tried for committing the offence in issue.

The Court of Appeal further added that the suspended sentence was, in particular, aimed at encouraging the applicant to make a greater effort to comply with his obligation to leave the Netherlands.

14 . Lastly, it appears from the Court of Appeal ’ s judgment that the single-judge chamber of the Rotterdam Regional Court had convicted the applicant of a different, unrelated offence on 9 September 2004, and had sentenced him to a suspended prison term of four weeks, to be activated if the applicant reoffended within two years. The Court of Appeal rejected the prosecution ’ s demand for that sentence now to be activated.

15 . The applicant lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ) on 26 September 2007.

16 . On 26 October 2007 the President of the Chamber decided to adjourn the Court ’ s examination of the present case until the proceedings pending before the Supreme Court had come to an end.

17 . On 6 May 2009, while the proceedings before the Supreme Court were still ongoing, the Government informed the Court that it had come to their attention that the applicant had obtained a residence permit in Belgium in 2008. For this reason, they requested that the case be struck out of the list on the basis of Article 37 of the Convention. In reply to the information put forward by the Government, the applicant ’ s representative wrote that she had only very recently become aware of the applicant having been granted a residence permit in Belgium. In her submission, this did not, however, in any way change the fact that the applicant ’ s rights under Articles 3, 8 and 13 of the Convention had been violated.

18 . On 1 December 2009 the Supreme Court ruled that the applicant ’ s appeal on points of law was well-founded, and decided to remit the case to the Court of Appeal. It considered that, in the special circumstances of the case, the Court of Appeal ought to have made clear in its reasoning what efforts the applicant needed to make in order to leave the Netherlands, and whether such efforts, either with or without the support of the Netherlands authorities, might reasonably be expected to yield any result.

19 . The Court decided on 30 March 2010 that it first wanted to be apprised of the outcome of the proceedings before the Court of Appeal before deciding on the Government ’ s request for the case to be struck out. For this reason, it adjourned the Court ’ s examination of the case once more.

20 . In its judgment of 6 December 2010 the Court of Appeal upheld, in so far as relevant, the decision of the first-instance court of 10 October 2006, including the suspended sentence of two months ’ imprisonment. It also again rejected the prosecution ’ s request for activation of the suspended sentence imposed on the applicant in September 2004. The Court of Appeal found that the applicant could be held criminally liable for the offence which he had committed, as he could be said to be at fault for staying in the Netherlands illegally if he had not made proper efforts to leave the country by doing one or more of the following:

- approaching countries which had not ratified the 1951 Refugee Convention, for which his conviction for offences committed in his country of origin would not constitute an impediment to admission within the meaning of Article 1F of that Convention;

- turning to the Belgian authorities, bearing in mind that the chances of admission to that country could be said to be relatively good, in view of Belgium ’ s historical (colonial) ties to the current Democratic Republic of the Congo;

- turning to the International Organisation for Migration in The Hague, which might have assisted him in complying with his legal duty to leave the Netherlands.

The Court of Appeal concluded that it did not appear that the applicant had made any of the aforementioned efforts prior to his arrest on 9 May 2006, while the possibility that such efforts might have been effective could not reasonably be excluded.

21 . The Court of Appeal ’ s judgment became final on 21 December 2010, the applicant not having lodged an appeal on points of law against it.

COMPLAINTS

22 . The applicant complained that subjecting him to an exclusion order Ë— which caused him to commit a criminal offence simply by being in the Netherlands Ë— in a situation where he was unable to travel to any other country amounted to inhuman or degrading treatment or punishment, contrary to Article 3 of the Convention. Moreover, this situation had forced him to go into hiding and stopped him from seeing his family for fear of being arrested. The exclusion order therefore also breached his right to respect for his family life, as guaranteed by Article 8. Finally, invoking Article 13 of the Convention, the applicant complained that he had not had an effective remedy against the imposition of the exclusion order, as the Minister for Immigration and Integration had refused to assess the criminal ‑ law consequences of that order in relation to the fact that the applicant had nowhere else to live but in the Netherlands.

THE LAW

23 . The Court considers that it is not necessary to decide whether the case should be struck out of its list of cases in accordance with the Government ’ s request and in view of the applicant ’ s admission to Belgium, since it is, in any event, inadmissible for the reasons set out below.

A. Complaint under Article 3 of the Convention

24 . The applicant complained that subjecting him to an exclusion order amounted to inhuman or degrading treatment or punishment in breach of this provision, since it had led to him committing a criminal offence by being in the Netherlands, even though there was nowhere else for him to go. Article 3 reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

25 . The Court reiterates that, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country, that provision implies the obligation not to expel the person to that country (see, inter alia , Chahal v. the United Kingdom , 15 November 1996, §§ 73-74, Reports of Judgments and Decisions 1996-V, and A. v. the Netherlands , no. 4900/06, § 141, 20 July 2010). There is no doubt that the Government complied with this obligation, as they had no intention of expelling the applicant to the DRC as long as a real risk of his being subjected to treatment in breach of Article 3 existed there. However, it is the applicant ’ s submission that to subject him to an exclusion order in those circumstances – where he had no choice but to stay in the Netherlands – was a disproportionate measure incompatible with Article 3, as it meant that he was committing a criminal offence by remaining in the Netherlands, and was thus liable to criminal prosecution and conviction.

26 . According to the Court ’ s established case-law, in order for ill-treatment to fall within the scope of Article 3 of the Convention, it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom , 18 January 1978, § 162, Series A no. 25, and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX). The Court has considered treatment to be “inhuman” because, inter alia , it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV , and Ramirez Sanchez v. France [GC], no. 59450/00, § 118, ECHR 2006 ‑ IX ). Treatment or punishment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance, or when it was such as to drive the victims to act against their will or conscience (see, inter alia , Keenan v. the United Kingdom , no. 27229/95, § 110, ECHR 2001-III, and Jalloh , cited above, § 68). In a case brought by a conscientious objector, the Court found that the applicant had been subjected to degrading treatment within the meaning of Article 3, having regard to the numerous criminal proceedings brought against him, the cumulative effects of the ensuing criminal convictions and the constant alternation between prosecution and imprisonment, together with the possibility that he would face prosecution for the rest of his life (see Ãœlke v. Turkey , no. 39437/98, §§ 62-63, 24 January 2006).

27 . The Court considers at the outset that subjecting a person who cannot be returned to his or her country of origin to an exclusion order does not, by itself and without more, constitute treatment or punishment contrary to Article 3, even if the person ’ s continued stay in the country concerned in defiance of the exclusion order renders him or her liable to criminal prosecution and conviction. However, an issue under Article 3 may arise if several sets of criminal proceedings were brought against a person subject to an exclusion order and/or if, despite making reasonable efforts to find a third country prepared to admit him or her, that person continues to face the risk of an interminable series of prosecutions and criminal convictions and is helpless to prevent such a predicament.

28 . In the present case, the Court observes that it appears from the case file that, between the applicant being made subject to an exclusion order on 27 September 2004 and his relocation to Belgium at some point in 2008, criminal proceedings were instituted against him just once. Although it is true that he was convicted of the offence of being in the Netherlands while he knew that he was subject to an exclusion order, the sentence which was imposed on him was suspended. Moreover, it was also decided that this conviction should not trigger the activation of a suspended sentence that had previously been imposed on him (see paragraph 20 above). The Court further notes, firstly, that the reasoning adopted by the Court of Appeal in its first judgment of 21 September 2007 strongly suggests that a suspended sentence was imposed in recognition of the difficult situation in which the applicant found himself (see paragraph 13 above) and, secondly, that it appears from that court ’ s final judgment of 6 December 2010 that the applicant might not have been found criminally liable had he made certain efforts to comply with his obligation to leave the Netherlands prior to his arrest on 9 May 2006 (see paragraph 20 above). Accordingly, and while account was thus taken of the applicant ’ s particular situation, it also appears that he was in a position to affect the outcome of the criminal proceedings.

29 . In view of the foregoing, the Court cannot find that the treatment complained of attained the requisite level of severity to engage Article 3.

30 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 8 of the Convention

31 . The applicant complained that the exclusion order entailed a breach of Article 8 of the Convention which, in so far as relevant, provides:

“1. Everyone has the right to respect for his ... family life ...”

32 . The Court reiterates that, pursuant to Article 35 § 1 of the Convention, the Court “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.” Further, it has consistently held that domestic remedies cannot be said to have been exhausted when an appeal has been rejected or not allowed because of a procedural mistake on the part of the appellant (see Mahdid and Haddar v. Austria (dec.), no. 74762/01 , ECHR 2005 ‑ XIII (extracts) ).

33 . The Court notes that the applicant ’ s Article 8 grievance in his appeal against the decision of the Minister for Immigration and Integration of 27 May 2005 was not examined by the Regional Court because he had raised it too late (see paragraph 8 above); he had thus failed to comply with the procedural requirements attached to that remedy.

34 . That being so, the applicant has not validly exhausted the domestic remedies available to him in Dutch law. It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

C. Complaint under Article 13 of the Convention

35 . The applicant also complained under Article 13 that he had no effective remedy. 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.”

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2015 .

             Stephen Phillips Luis López Guerra Registrar President