Resolution CM/ ResDH ( 2014) 104

Execution of the judgment of the European Court of Human Rights A. against the Netherlands

Application No.

Case

Judgment of

Final on

4900/06

A.

20/07/2010

20/10/2010

(Adopted by the Committee of Ministers on 9 July 2014

at the 1205th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the fact that there was a real r isk that the applicant, a Libyan national, would be exposed to treatment proscribed by Article 3 if expelled to Libya (violation of Article 3) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that , within the time-limit set , the respondent S tate paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent S tate, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH ( 2014) 104

Information about the measures to comply with the judgment in the case of A. against the Netherlands

Introductory case summary

The case concerns the risk for the applicant to be exposed to treatment proscribed by Article 3 if expelled to Libya.

The applicant, a Libyan national, entered the Netherlands in 1997 and applied, unsuccessfully, for asylum as he feared persecution in Libya for his involvement in an opposition group. Subsequently, he stood trial in the Netherlands on suspicion of involvement in an Islamic extremist network, but was acquitted of all charges in 2003. In 2005, an exclusion order was imposed on him as he was considered to constitute a threat to national security.

The European Court had regard to the overall human rights situation in Libya and the fact that reports showed that detainees in Libya were at a real risk of being tortured or otherwise ill-treated. Moreover, it took into account that the applicant ’ s case had been broadly covered in the media and that the Libyan authorities had been informed about his detention for removal purposes. Against this background the Court considered it sufficiently plausible for the purposes of Article 3 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.

Accordingly, the Court concluded that the applicant ’ s expulsion to Libya would breach Article 3.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

6,470.25 euros

6,470.25 euros

Paid on 15/09/2010

b) Individual measures

On 10 November 2010 the Minister for Immigration, Integration and Asylum Policy of the Netherlands rejected the applicant ’ s request for revocation of the exclusion order issued against him. It held that the applicant did not satisfy the conditions for revocation laid down in the Aliens Act , inter alia , because revocation can only be granted if the alien has lived for at least ten consecutive years outside the Netherlands. At the same time, however, the decision confirmed that the applicant will not be expelled to Libya due to the established risk of a violation of Article 3 of the Convention.

On 18 February 2011, the Government confirmed that, given the decision of 10 November 2010, the applicant would not be expelled to Libya, even if this did not alter the fact that the applicant should make an effort himself to leave the Netherlands for another country. The Dutch Government have thereby undertaken not to return the applicant to Libya nor to any other country which could expel him to Libya, as long as the circumstances require.

Moreover, it is noted that , in its recent case-law , the Court accepted that the situation of applicants living in the Netherlands under similar conditions (i.e. applicants for whom it was accepted that they could not be expelled due to an Article 3 obstacle, but against whom the country of residence had nevertheless imposed an exclusion order) did not contravene the Convention (see, in particular, K . v. the Netherlands, No. 33403/11, decisions of 18 October 2011 and 25 September 2012; and I. v. Netherlands, N o. 24147/11, decisions of 18 October 2011 and 10 July 2012).

Lastly, if an act aimed at the applicant ’ s effective removal were to be taken in the future, the applicant could bring administrative appeal proceedings in accordance with article 72 § 3 of the Aliens Act 2000 in order to obtain a determination of the question of whether that act would be compatible with his rights under the Convention (see K. v. the Netherlands, N o. 33403/11, decision of 25 September 2012, para. 44; and I. v. Netherlands, N o. 24147/11, decision of 10 July 2012, para. 46).

Against this background , no further individual measures were considered necessary.

II. General measures

Given the direct effect of the Court ’ s judgments in the Netherlands, all authorities concerned are expected to align their practice with the present judgment. For that purpose, the judgment has been published in the digital database of case-law Rechtspraak .nl (ECLI :NL:XX:2010:BN9500 ). It has generated attention in legal professional literature (such as JV 2010, 432 and EHRC 2010, 113 and NJB 2010, 1806 and AB 2011, 132).

Given that the violation occurred as a result of an isolated incident, no further general measures were considered necessary.

III. Conclusions of the respondent S tate

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46, paragraph 1 of the Convention.