THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19221/08 by Jacobus Pieter VAN MELLE and Others against the Netherlands

The European Court of Human Rights (Third Section), sitting on 29 September 2009 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura , Corneliu Bîrsan , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Luis López Guerra , judges, and S antiago Quesada , Section Registrar ,

Having regard to the above application lodged on 16 April 2008,

Having deliberated, decides as follows:

THE FACTS

A list giving the names of the applicants is appended to the present decision.

All applicants were represented before the Court by Mr N.M.P. Steijnen, a lawyer practising in Zeist .

A. The circumstances of the case

The facts of the case, as submitted by the applicants and apparent from documents available to the public , may be summarised as follows.

B . Factual background

In the night of 26 to 27 October 2005 a fire broke out in a detention centre at Schiphol ( Amsterdam ) Airport. The detainees were aliens due to be deported to other countries. Eleven detainees were killed, fifteen persons (mostly detainees) were injured. Surviving detainees were taken to other detention facilities.

Technical investigations led to the finding that one of the detainees had started the fire by negligently tossing a burning cigarette into a waste paper basket.

C . Domestic proceedings

Thirty of the original applicants wrote to the Public Prosecutor ( officier van justitie ) of the Regional Court ( rechtbank ) of The Hague on 21 December 2005 asking for the prosecution of the then Minister of Justice and Minister for Immigration and Integration, who in their submission bore responsibility for the events complained of. On 17 March 2006 the Public Prosecutor informed the applicants of his refusal, the Regional Court lacking competence in the matter (Article 119 of the Constitution, see below).

On 19 March 2006 the applicants lodged a complaint about the failure to prosecute with the Court of Appeal ( gerechtshof ) of The Hague . On 17 November 2006 the Court of Appeal gave a decision finding that it was not competent to order the prosecution of Government ministers and referring the matter to the Supreme Court ( Hoge Raad ).

On 29 June 2007 the Procurator General gave an advisory opinion expressing doubts as to whether all the applicants could be found to have a sufficient interest in the case. Be that as it might, under international law – including Article 3 under its procedural head – it was left to domestic law to appoint the competent authority; it was therefore not incompatible per se with Article 3 of the Convention to make the prosecution of the two ministers conditional on a Royal Decree or a decision of the Lower House of Parliament.

On 19 October 2007 the Supreme Court gave a decision noting the absence of any Royal Decree or decision of the Lower House of Parliament and declaring the applicants ’ complaint about the failure to prosecute inadmissible. This brought the domestic proceedings to an end.

D. The report of the Investigation Committee for Safety Issues

In the meantime, an independent committee ( Onderzoeksraad voor Veiligheid , Investigation Committee for Safety Issues) undertook an investigation based on the following two questions:

Firstly, why were eleven detainees killed in the fire?

Secondly, how were the other persons involved received and taken care of afterwards?

It submitted its report to the Lower House of Parliament on 21 September 2006. The report itself ran to 188 pages, not including 128 pages of appendices and one page of recommendations.

On the first point, the report found fault with the following three Government institutions for having insufficient regard to fire safety:

Primary responsibility was imputed to the Correctional Institutions Agency, although each of the three parties had shown a tendency to count too heavily on the other two doing what was needed.

As a technical matter, it was found after extensive testing that the fire could well have been started by a cigarette end and that technical failure was so unlikely a cause as to be excluded.

On the second point, the report criticised certain shortcomings in the care given to the surviving detainees following relocation but noted that some of the detainees had themselves failed to co-operate, some for example claiming false identities.

The report made recommendations to the above three Government institutions and the Minister of the Interior and Kingdom Relations ( Binnenlandse Zaken en Koninkrijksrelaties ).

The Ministry for Immigration and Integration was not among the Government bodies found at fault.

The Minister of Justice and the Minister of Housing, Spatial Planning and the Environment both resigned on grounds of political responsibility shortly after this report was published.

E. The applicants

The original applicants are a non-governmental organisation ( Liga voor de Rechten van de Mens , “League for Human Rights”) and thirty-six individuals. Of the latter, two claim kinship with individuals killed in the fire; they are applicants no. 2, Ms Nevin Igli, sister-in-law of the late Mr Mehmet Ava, and no. 3, Mr Erol Sahin, cousin of the late Mr Kemal Sahin. One, applicant no. 6, Ms Christiana Alberdina Kondehson, claims kinship with a survivor, Mr Oye Adepeju.

The original applicants were later joined by former detainees who had survived the fire, namely applicants nos. 38 and 39, Mr Muhammed Simsek and Mr Chafik Chnachi (letter of 30 October 2008), and applicants nos. 40 and 41, Mr Mustafa Moujahid and Mr Mustafa el Boukhari (letter of 12 November 2008).

The detainee found to have set the waste paper basket alight, Mr Ahmed Issa Al-jeballi, was among the survivors . He was tried for having started the fire through criminal negligence and convicted both at first instance and on appeal; the conviction and sentence are not yet final as both the prosecution and Mr Al-jeballi himself have appealed on points of law to the Supreme Court. Mr Al-jeb alli has also joined the case as an applicant (no. 42, letter of 20 February 2009).

F. Relevant domestic law

1. The Code of Criminal Procedure

At the time of the events complained of, relevant provisions of the Code of Criminal Procedure provided as follows:

Article 12

“1. If the perpetrator of a punishable act is not prosecuted, or if the prosecution is not pursued to a conclusion, then anyone with a direct interest ( rechtstreeks belanghebbende ) may lodge a written complaint with the Court of Appeal within whose area of jurisdiction the decision has been taken not to prosecute or not to pursue the prosecution to a conclusion.

...”

Article 12b

“If the complaint is not within the competence of the Court of Appeal, that court shall declare that it lacks competence. If the Court of Appeal considers that another Court of Appeal or ... the Supreme Court has competence, it shall refer the case to the court which it considers to have competence, at the same time forwarding the written complaint and a copy of its decision.”

2. The Netherlands Constitution

Article 119 of the Constitution for the Kingdom of the Netherlands Constitution ( Grondwet voor het Koninkrijk der Nederlanden ) provides as follows:

“Members of Parliament, Ministers and Deputy Ministers shall be tried for crimes committed in their official capacity by the Supreme Court, even after their resignation. The prosecution order shall be given by Royal Decree ( koninklijk besluit ) or by a decision of the Lower House of Parliament.”

No such prosecution has ever been brought.

COMPLAINTS

It is the applicants ’ position that Article 3 required the then Minister of Justice and Minister for Immigration and Integration to be prosecuted. The application is directed towards that end.

In their original application the applicants asked the Court either to direct that the two ministers be prosecuted or itself to hold that the two ministers were criminally responsible.

In a later letter (dated 24 October 2008) the applicants asked the Court to find, in the alternative, that the deceased and surviving detainees had been victims of inhuman and degrading treatment proscribed by Article 3.

THE LAW

I. PRELIMINARY ISSUES

A. Admissibility ratione personae

The applicants argue that the prohibition of torture is a rule of ius cogens under international humanitarian law. From this it follows, in their argument, that any person can claim an interest and hence standing to bring proceedings in the event that treatment amounting to “torture” is threatened or such a threat actually materialises.

As to whether all applicants can be regarded as “victims” within the meaning of Article 34 of the Convention, the Court has held that this concept must be interpreted autonomously and independently of domestic concepts such as those concerning the interest in taking proceedings or the capacity to do so. In the Court ’ s opinion, there must be a sufficiently direct link between the applicant and the damage which he or she claims to have sustained as a result of the alleged violation for an applicant to be able to claim that he or she is the victim of a violation of one or more of the rights and freedoms recognised by the Convention and its Protocols (see, among other authorities, Association des amis de Saint-Raphaël et de Fréjus and Others v . France (dec.), no. 45053/98, 29 February 2000, in respect of the applicant association; and Smits, Kleyn, Mettler Toledo B.V. et al., Raymakers, Vereniging Landelijk Overleg B etuweroute and Van Helden v. the Netherland s (dec .), nos. 39032/97, 39343/98, 39651/98, 43147/98, 46664/99 and 61707/00 , 3 May 2001, in respect of the applicant association Vereniging Landelijk Overleg Betuweroute ) .

Of the forty-two applicants, only five (Mr Muhammed Simsek, Mr Chafik Chnachi, Mr Mustafa Moujahid, Mr Mustafa el Boukhari and Mr Ahmed Issa Al-jeballi) were actually detained in the detention centre at the time of the fire and underwent the events complained of.

Two other applicants claim kinship with detainees killed in the fire. They are Ms Nevin Igli and Mr Erol Sahin, whose status as applicants the Court will consider below.

The remaining thirty-five applicants claim standing not in their own right but as protectors of the interests of the actual victims, both living and dead. However, they were not personally affected by the facts on which their complaint under Article 3 is based. Consequently they cannot claim to be “victims” of a violation of this provision in the sense of Article 34 of the Convention.

It follows that in so far as the application is lodged by those thirty-five applicants it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

B. Six months

The final decision in the case was given by the Supreme Court on 19 October 2007.

1. The further complaints

In the original application (lodged on 16 April 2008), the applicants complained only of the failure to prosecute the then Minister of Justice and Minister for Immigration and Integration.

In a letter dated 24 October 2008, more than a year after the final decision of the Supreme Court, the original applicants (nos. 1 through 37) expressed the wish to supplement their application with further complaints, namely that the victims of the fire had been the victims of inhuman or degrading treatment contrary to Article 3 of the Convention.

Even in so far as any of the original applicants have standing before the Court (see below), t hese further complaints are out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicants who joined the application subsequently

The five applicants who were actually survivors of the fire joined the case as applicants on 30 October 2008 (Mr Muhammed Simsek and Mr Chafik Chnachi), 12 November 2008 (Mr Mustafa Moujahid and Mr Mustafa el Boukhari) and 20 February 2009 (Mr Ahmed Issa Al-jeballi), respectively, that is more than six months after the final decision of the Supreme Court in the case of each.

It follows that, as regards them, the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

C. Locus standi of the applicants who are surviving kin

Two of the applicants claim kinship with detainees killed in the fire. They are the second applicant , Ms Nevin Igli, sister-in-law of the late Mr Mehmet Ava, and the third applicant, Mr Erol Sahin, cousin of the late Mr Kemal Sahin.

As has been accepted in numerous cases, and as has been stated in Fairfield v. United Kingdom (dec.), no. 24790/04, ECHR 2005-VI, “individuals who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention may apply as applicants in their own right”.

Mr Erol Sahin was not one of the thirty applicants who took part in the domestic proceedings. The Court is however prepared in the circumstances to proceed on the assumption that Ms Nevin Igli and Mr Erol Sahin both have the requisite standing before the Court.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

Article 3 of the Convention provides as follows:

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

A. Scope of the case before the Court

The complaint, as lodged within the six-month time-limit by the two applicants with standing before the Court, is that the two Ministers were not prosecuted in connection with the events of the night of 26 to 27 October 2005 as they affected the late Messrs Mehmet Ava and Kemal Sahin.

B. Examination of the complaint

As the Court understands the application, the applicants hold the two Ministers responsible for violations of international law. They rely heavily on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which contains an obligation to make torture and other cruel, inhuman or degrading treatment or punishment committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity crimes under domestic law (Articles 4 and 16).

The Court reiterates that w here an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State (or where a surviving relative of an alleged victim of such treatment who has standing as an applicant before the Court does so) , that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible ( see , for example, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV).

Let it be assumed that the applicants have presented a case that would be credible under the substantive head of Article 3. It does not follow that the respondent Party was for that reason alone under an obligation to prosecute the persons whom the applicants wished to see held to account. More generally, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 3 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see, mutatis mutandis , Branko TomaÅ¡ić and Others v. Croatia , no. 46598/06, § 64 , ECHR 2009 ‑ ..., with further references).

Turning to the actual circumstances, the Court further observes that there was an investigation by an independent committee, the Investigation Committee for Safety Issues. Its report was made public less than eleven months after the fire. The report, which was extensive and detailed and highly critical and which the Court is prepared to accept as reliable, identified specifically the Government institutions which it blamed for the failure to secure the safety of the detainees and for any inadequacy in the care given to them afterwards (i.e. the Ministry of Justice ; the Ministry of Housing Spatial Planning and the Environment ; and the Municipality of Haarlemmermeer ) . In fact, it led to the resignation of the two ministers responsible for the safety and care of the detainees on grounds of political responsibility.

The Court takes the view that, in so far as they were addressed directly to members of the Government at ministerial level, the procedural requirements of Article 3 were satisfied in this case. There is nothing in the application to suggest that the Minister of Justice – one of those who resigned over the matter – and the Minister for Immigration and Integration personally disregarded their duties to the point of criminal responsibility warranting prosecution.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President

Application no. 19221/08 by Jacobus Pieter VAN MELLE and Others against the Netherlands

List of Applicants

1 . P IETER Van Melle

2. NEVIN IGLI

3. EROL SAHIN

4. LIGA VOOR DE RECHTEN VAN DE MENS ( Non Governmental Organisation)

5. R. VAN HOLST

6. CHRISTIANA ALBERDINA KONDEHSON

7. ANNEMIEKE TENT

8. C.M.J. NIJBOER

9. WILLEMIJN VAN DER WERF

10. NICO DEKKER

11. A. JANSEM

12. MARIETTE MOORS

13. C.G. MAK

14. BAS THIJS

15. J.W. HENNEMAN

16. A. REIDSMA

17. BRAM VAN DER LEK

18. LINEKE HELMANTEL

19. DIANE EGTBERTS

20. C. RAVESTEIJN - DE JONGH

21. H. STOMPHORST

22. W.J.H. ROBBEN

23. C.C. V.D.DONK - VAN OUWENDIJCK

24. ARNOLD HELMANTEL

25. M. AKKERMAN

26. E. POSTHUMUS

27. FEDDE HETTINGA

28. PIETER RIETMAN

29. NIELS VELDHOEN

30. W. VERBERNE

31. MARTIJN PRUIJSER

32. P. VAN EIJNDHOVEN

33. A. RIETMAN

34. A. ELZINGA

35. A. MARDENBOROUGH

36. T. WIERTZ

37. E. HUMMELS

38. chafik chnachi

39. MUHAMMED SIMSEK

40. MUSTAFA EL BOUKHARI

41. MUSTAFA MOUJAHID

42. AHMED ISSA AL-JEBALLI