DISSENTING OPINION OF JUDGE MIJOVIĆ

1. General remarks

In the present case which concerns the applicant ’ s detention at the Immigration Centre, the majority of judges has found that there would be a violation of Article 3 of the Convention in the event of the applicant ’ s deportation to Syria; that there has been a violation of Article 5 § 1 of the Convention with regard to the period of the applicant ’ s detention from 6 October 2008 to 31 January 2011; and that there was no need to examine separately the complaints under Articles 5 § 4 and 8 of the Convention. To my regret, my opinion differs significantly from the conclusion reached by the majority.

While I agree with the Chamber that the complaints concerning Articles 3, 5 §§ 1 and 4 and 8 are admissible, I am of the opposite opinion as regards the majority ’ s decision that there would be a violation of Article 3 of the Convention in the event of the applicant ’ s deportation and that there has been a violation of Article 5 § 1 of the Convention with regard to the period of the applicant ’ s detention from 6 October 2008 to 31 January 2011.

Additionally, and contrary to the Chamber ’ s decision, I am of the opinion that it is necessary to examine separately the complaint under Article 8 of the Convention.

My general remarks are related to the fact that the Chamber has neglected both the historical background to the presence of the paramilitary armed forces and the very particular post-war circumstances in which Bosnia and Herzegovina finds itself. In so doing, the Chamber decided to apply the Court ’ s case-law strictly, even rigidly, paying no attention to the fact that the applicant in this case was not an ordinary illegal immigrant/crime suspect, but a person whose legal situation had to be seen in a broader context, quite different from that of th e applicants in the cases relied on by the Chamber to reach its conclusion in the instant case. This case, in my opinion, should have been dealt with by the Grand Chamber because it is not only this applicant ’ s case, but gives rise to the more general problem of Bosnia and Herzegovina ’ s inability to deal with the consequences of the presence of paramilitary armed forces on its territory after the war. What has not been even mentioned in the judgment is the fact t hat the State authorities of Bosnia and Herzegovina are fac ed with about 20,000 potential cases of this kind [11] .

2. Factual background

The facts of the case show that the applicant was a member of El Mujahedin, the ARBH unit as described in the judgment. As correctly pointed out in the judgment, Article III of Annex 1A to that Agreement called for the withdrawal of all foreign forces, irrespective of whether they were legally and militarily subordinated to any of the local forces. In view of that, on 14 December 1995 the ARBH disbanded El Mujahedin and ordered its foreign members to leave the country by 10 January 1996. The applicant decided not to do so. He stayed in the country and acted as leader of a group of foreign mujahedin and their supporters. In that self-proclaimed capacity he detained two civilians , which led to his conviction for false imprisonment in May 2000 and a suspended prison sentence.

In the meantime, the Bosnia and Herzegovina administrative authorities held that the applicant had acquired citizenship of Bosnia and Herzegovina by means of fraudulent conduct, false information and concealment of relevant facts. On 5 April 2007 the State Court and on 4 October 2008 the Constitutional Court upheld that decision.

In May 2007 the Aliens Service held, on the basis of confidential intelligence reports, that the applicant was a threat to national security. He was granted a period for voluntary departure of fifteen days.

In August 2007 the Asylum Service refused the applicant ’ s asylum claim and granted the applicant a fifteen-day period for voluntary departure, based on the fact that the applicant did not face a real risk of being subjected to ill-treatment given that he had never been a member of the Muslim Brotherhood (unlike Muhammad Zammar mentioned in the judgment). It further held that it had not been shown that he would be ill-treated solely because he had fought with the foreign mujahedin in Bosnia and Herzegovina . In January 2008 the State Court upheld that decision. Officially and legally, from that moment on, the applicant became an unlawful resident.

On 6 October 2008 the Aliens Service placed the applicant in an immigration centre on security grounds, pursuant to section 99(2)(b) of the Aliens Act 2008. That decision was later upheld by the State Court and the Constitutional Court . The initial detention period was extended each month until February 2011. All the extension orders were upheld by the State Court, some of them also by t he Constitutional Court (constitutional appeals concerning the remaining orders are still pending).

Although the State Court emphasised that the indication of a period for voluntary departure should not be legally confused with a deportation order and that the issue of whether the applicant ’ s departure would be contrary to the Convention should more appropriately be examined within the context of deportation proceedings, the fact remains that th e applicant in accordance with Article III of Annex 1A was ordered to leave the country a long time before that decision, precisely by 10 January 1996. However, it would appear that a constitutional appeal against the State Court ’ s decision is still pending, which renders this part of the applicant ’ s complaint premature.

Further to the Constitutional Court ’ s decision on 17 November 2008 the State Court assessed the national security evidence and upheld the Ministry of Security ’ s decision, relying on the applicant ’ s conviction of May 2000, his public threats against the State authorities, his standing in the mujahedin community which allowed him to issue a binding ruling ( fatwa ), his lectures at a mosque in a Sarajevo suburb, advocating the Saudi-inspired Wahhabi/Salafi version of Islam and his attempts to obtain ammunition illegally. In June 2009 the Aliens Service granted the applicant another period of fifteen days for his voluntary departure. On 27 July 2009 the Ministry of Security upheld that decision. On 23 December 2009, after having assessed the national security evidence, the State Court upheld that decision. It relied, among other things, on the fact that the applicant ’ s name appeared on a list of international criminals maintained by the International Criminal Police Organisation (INTERPOL). On 1 July 2010 another bench of the same court upheld that decision . It would appear that the applicant has lodged a constitutional appeal in that regard which is still pending. Accordingly, once again, in my opinion this part of the applicant ’ s complaint is premature.

Summarising these facts, it is clear that the applicant was previously ordered to leave the country; he was convicted for false imprisonment of civilians; he was proved to have been engaged in fraudulent conduct regarding his forged citizenship and, finally, as established by the domestic courts, he posed a serious threat to national security and public order. Furthermore, it is accepted, including by the Chamber, that n one of the domestic authorities ’ decisions was arbitrary, which significantly distinguishes this case from the Chahal case on which the Chamber relied in its judgment .

3. Alleged violation of Article 3 of the Convention

As an unlawful resident, the applicant claimed asylum. The claim was rejected by the domestic authorities because the applicant, in the Government ’ s view, had failed to demonstrate that the risk to him, if deported to Syria , was real. In their opinion, the assessment made at the domestic level had been adequate and sufficiently supported by domestic materials as well as by materials originating from a variety of reliable and objective sources.

Notwithstanding that assessment , the Chamber considered that the domestic authorities had not sufficiently take n into account the nature of the mujahedin movement to which the applicant undoubtedly belonged. Having regard to Syria ’ s human rights record and the fact that the situation in Syria has deteriorated since the onset of political protest and civil unrest in March 2011, the Chamber considered that there was a real risk that the applicant, if deported to Syria , would be subjected to ill-treatment. Therefore, the Chamber found that the applicant ’ s deportation to Syria would violate Article 3.

As correctly pointed out in the judgment, the right to asylum is not contained in either the Convention or its Protocols ( Salah Sheekh v. the Netherlands , no. 1948/04, § 135, 11 January 2007). An expulsion may, however, give rise to an issue under Article 3, and engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if expelled, faces a real risk of being subjected to ill-treatment. The assessment of the existence of a real risk must be rigorous (see Chahal v. the United Kingdom , 15 November 1996, § 96). As a rule, it is for applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 ( N. v. Finland , no. 38885/02, § 167, 26 July 2005 ) .

Turning to the facts of the case, it is clear that the applicant failed to prove that he was a member of the outlawed Muslim Brotherhood and that he would be perceived as such by the Syrian authorities. On the contrary, it had been proved that the applicant had gone to Syria in 1993, stayed there for one month and obtained a new Syrian passport. The domestic courts therefore upheld the Asylum Service ’ s decisions not to grant the applicant asylum, which decisions, in my understanding, were correct and justified. Under the domestic legislation, a claim for asylum and an application for judicial review of a refusal of such a claim have a suspensive effect on the enforcement of a deportation order. It is clear from the facts of the case that the Constitutional Court has not yet decided on t he applicant ’ s appeal. That, obviously, did not prevent the Chamber from finding a violation of Article 3.

One of the arguments that the Chamber relied on in doing so was the fact that the political crisis in Syria has recently deteriorated. In my view, that is of no relevance since the applicant has never claimed refugee status on humanitarian grounds. I strongly believe that the European Court ’ s role is not to increase the number of illegal immigrants or unlawful citizens across Europe, but to reiterate that as a matter of well-established international law and subject to its treaty obligations, including those arising from the Convention, a Contracting State has the right to control the entry, residence and expulsion of aliens, as established by the Court ’ s case-law. (see Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-XII). I consider it wrong to find a violation of Article 3 of the Convention in the circumstances of the instant case.

4. Alleged violation of Article 5 § 1 of the Convention

The applicant, contesting the lawfulness of his detention, relied on Article 5 § 1 of the Convention.

My personal conviction is that this complaint should have been dealt with under Article 5 § 1 (c), whereas the Chamber decided to deal with it under Article 5 § 1 (f).

While it is true that Article 5 enshrines the protection of the individual against arbitrary interference by the State with his or her right to liberty, sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds. One of the exceptions, contained in sub-paragraph (c), permits the State to control the liberty of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. I find this to be a basis for the applicant ’ s arrest and the initial period of his detention. The first period of the applicant ’ s detention (lasting from 6 October 2008 until 31 January 2011) might not have been justified under Article 5 § 1 (f) of the Convention, but the fact is that he was arrested not in order to face deportation but on suspicion of posing a threat to national security. It was only later that the deportation order was issued (1 February 2011). I maintain my view that the initial period of his detention should have been dealt with under Article 5 § 1 (c).

As emphasised in paragraph 61 of the judgment, where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: any deprivation of liberty should, in addition, be in keeping with the purpose of protecting the individual from arbitrariness – and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and contrary to the Convention (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, 29 January 2008). The applicant was arrested in compliance with the domestic law, pursuant to which an alien must be detained if it has been established that he or she constitutes a threat to national security (see paragraph 36 of the judgment). The applicant ’ s claims were thoroughly examined before the domestic courts . Acc ordingly, it cannot be said that his detention was arbitrary (contrast the position in Chahal , where the applicant ’ s detention was decided not by a court, but by the Advisory Board).

In its judgment, the majority reiterated that sub-paragraph (c) does not permit a policy of general prevention directed against a person or a category of persons who are perceived by the authorities, rightly or wrongly, as being dangerous or having propensity to unlawful acts. I agree, except for the fact that in this case the arrest was not a measure of general prevention, but a very individual measure directed at someone who was previously convicted and, as established by the domestic courts, who posed a threat to national security and was wanted by INTERPOL.

Turning to the Court ’ s case-law principles, detention to prevent a person from committing an offence must, in addition, be “effected for the purpose of bringing him before the competent legal authority” (see Lawless v. Ireland (no. 3) , § 14). Sub-paragraph (c) thus permits deprivation of liberty only in connection with criminal proceedings (see Ciulla , § 38). Since the domestic authorities had not brought criminal proceedings against the applicant, the application of sub-paragraph (c) would necessarily lead to finding a violation of Article 5 § 1, which I would have supported if the Chamber had decided to apply Article 5 § 1 (c).

5. Alleged violation of Article 8 of the Convention

The applicant complains that his expulsion would violate his right to respect for family life, as protected by Article 8 of the Convention.

The Chamber decided that, since it found that the applicant ’ s deportation to Syria would constitute a violation of Article 3 of the Convention it was not necessary to decide the hypothetical question whether, in the event of expulsion to Syria , there would also be a violation of Article 8 of the Convention. I am of the opposite opinion. While I believe that the applicant ’ s deportation to Syria would not constitute a violation of Article 3, I am of the opinion that there would be a violation of Article 8 in the event of the applicant ’ s deportation to Syria , bearing in mind the decision not only to expel the applicant but to prohibit his re-entry for five years. As mentioned in the factual background to the case, the applicant is married to a citizen of Bosnia and Herzegovina and they are together bringing up six children. Maintaining contact with his family, given the crisis in Syria , would, in my opinion, be impossible. Therefore, I voted against the Chamber ’ s decision not to examine separately the complaint under Article 8 of the Convention .

[1] 1. While the respondent State was called “the Republic of Bosnia and Herzegovina ” during the 1992-95 war, the name “ Bosnia and Herzegovina ” is nevertheless also used in this judgment when referring to that period.

[2] 2. Bosnian Muslims are also known as Bosniacs. The term “Bosniacs” should, however, not be confused with the term “Bosnians ”, which is used to denote BH citizens irrespective of their ethnic origin.

[3] 3. The ARBH forces, mostly made up of the Bosnian Muslim population, were loyal to the central authorities of BH.

[4] 4. On 13 March 2002 t he Al- Haramain Islamic Foundation was placed on the list of entities associated with al-Qaeda maintained by the United Nations.

[5] 5. On 21 November 2002 t he Benevolence International and Bosanska idealna futura , its office in BH, were placed on the list of entities associated with al-Qaeda maintained by the United Nations. On 10 February 2003 Enaam M. Arnaout , its director, was convicted in the United States after he pleaded guilty to a racketeering conspiracy. In the plea agreement, he admitted that for a decade the Benevolence International Foundation had been defrauding donors by leading them to believe that donations were being used for strictly peaceful, humanitarian purposes , while some of that money was being diverted to mujahedin in BH.

[6] 6. The HVO forces were mostly made up of the local Croatian population. They were loyal to the authorities of neighbouring Croatia (see the ICTY judgments in Blaškić , IT-95-14-T , §§ 95-123, 3 March 2000, and IT-95-14-A , §§ 167-78 , 29 July 2004) .

[7] 7. A ccording to International Crisis Group, the Salafiyya began as a movement of modernist reform in the Middle East in the late ni neteenth century. Its founders, the Persian Shiite Jamal al-Din al-Afghani (1838-1897) and the Egyptian Sunni Mohammed Abduh (1849 ‑ 1905), were concerned above all to enable the Muslim world to rise to the challenge of Western power. This reformist combination of selective “ back to basics ” fundamentalism and selective modernism (accepting Western science and political ideas, notably liberal democracy and constitutional government) went into eclipse following the First World War. In the political turmoil in the Middle East following the destruction of the Ottoman empire, the abolition of the Caliphate, the expansion of Jewish settlement in Palestine and the establishment of British and French protectorates (Iraq, Palestine, Syria, Transjordan), the Salafiyya movement evolved in a markedly anti-Western and conservative direct ion under the guidance of Rashid Rida (1865-1935). This involved an explicit rapprochement from the late 1920s onwards between the Salafiyya movement and the Wahhabi doctrines championed by the triumphant Al-Saud dynasty in Arabia (see International Crisis Group’s report Understanding Islamism of 2 March 2005, p. 9).

[8] 8. BH consists of two Entities (the Federation of BH and the Republika Srpska) and the Brčko District.

[9] 9. All references to Kosovo, whether to the territory, institutions or its population, shall be understood to be in full compliance with United Nations Security Council Resolution 1244 (1999) and without prejudice to the status of Kosovo.

[10] 10 . In 2000 he was arrested in Yemen ; in 2002 he was released as part of a Yemeni jihadist rehabilitation programme .

[11] 1. The official data of the Bosnia and Herzegovina ’s Ministry of Security on 5 February 2012