Information Note on the Court’s case-law 198

July 2016

A.M. v. the Netherlands - 29094/09

Judgment 5.7.2016 [Section III]

Article 13

Effective remedy

No requirement under Article 13 for States to set up second level of appeal with suspensive effect in asylum cases: no violation

Facts – The applicant, an Afghan national, entered the Netherlands in 2003 and applied for asylum. In 2005 both his application for asylum and his appeal against that decision were rejected. The applicant did not appeal to the Administrative Jurisdiction Division of the Council of State. In 2007 an exclusion order was imposed on him and his attempts to challenge that decision were also unsuccessful. Again, the applicant did not appeal to the Administrative Jurisdiction Division.

In 2009 the European Court granted the applicant’s request for an interim measure under Rule 39 of its Rules of Court , indicating to the Netherlands Government that he should not be expelled to Afghanistan until further notice.

Law – Article 13 read in conjunction with Article 3: In cases concerning expulsion or extradition, the notion of an effective remedy under Article 13 required (i) independent and rigorous scrutiny of a claim that there existed substantial grounds for believing that there was a real risk of treatment contrary to Article 3, and (ii) a remedy with automatic suspensive effect. In the present case, a further appeal to the Administrative Jurisdiction Division did not have automatic suspensive effect. This remedy therefore fell short of the second effectiveness requirement. This finding was not altered by the fact that it was possible to seek a provisional measure from the Administrative Jurisdiction Division as such a request did not itself have automatic suspensive effect either.

This did not mean, however, that a further appeal to the Administrative Jurisdiction Division in asylum cases should be regarded as irrelevant. Such an approach would overlook the important role played by the Administrative Jurisdiction Division as a supervisory tribunal that sought to ensure legal consistency in, inter alia , asylum law. In addition, it was quite feasible that – while an asylum case was pending before the European Court – the Administrative Jurisdiction Division could decide to accept the further appeal against the impugned ruling of the Regional Court, quash it and remit the case to the Regional Court for a fresh ruling. Such a development at the domestic level could affect an applicant’s status as “victim” in the context of Article 34 of the Convention.

The Court further noted the automatic suspensive effect of an appeal filed with the Regional Court as well as the powers of this appeal court in asylum cases. Although Article 13 did not compel Contracting States to set up a second level of appeal, the applicant had had at his disposal a remedy complying with the above two requirements for challenging the Minister’s decision to deny him asylum. In fact, he could appeal to the Regional Court, which was empowered to examine the Article 3 risks in full and had indeed evaluated them on different occasions. It was true that the appeal to the Regional Court in the exclusion-order proceedings did not have suspensive effect. However, Article 13 had been complied with by virtue of the suspensive effect in the asylum proceedings.

Conclusion : no violation (unanimously).

The Court also found, unanimously, that there would be no violation of Article 3 in the event of the applicant’s removal to Afghanistan.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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