Legal summary

May 2023

Azzaqui v. the Netherlands - 8757/20

Judgment 30.5.2023 [Section III]

Article 8

Expulsion

Article 8-1

Respect for private life

Revocation of residence permit of long-term settled migrant and imposition of ten-year entry ban on account of violent offences, despite progress after years of confinement in custodial clinic: violation

Facts – The applicant, a Moroccan national, entered the Netherlands in 1982 at the age of 10 and was granted a permanent residence permit. Between 1987 and 1996 he was convicted of multiple criminal offences and sentenced to several terms of imprisonment. In 1996 he was convicted of rape and sentenced to two years’ imprisonment. The court found that at the time he had committed the offence he had been suffering from a personality disorder with schizotypal and antisocial traits and episodic psychotic experiences that had reduced his criminal culpability. It imposed an order for his confinement in a custodial clinic (“TBS order”). The criminal courts repeatedly extended that order. In 2016, on the recommendation of the behavioural experts from the applicant’s treatment facility, the TBS order was extended for one more year and conditional release was granted from confinement in the clinic, with treatment to be continued in an assisted living facility.

In 2017 the Deputy Minister of Justice and Security (“the Deputy Minister”) informed the applicant of his intention to revoke his residence permit and to impose an entry ban on the grounds that he posed a threat to public order. The applicant then violated the terms of his conditional release by smoking marijuana and drinking alcohol. In 2018 the Deputy Minister revoked the applicant’s residence permit and imposed a ten-year entry ban. The applicant’s appeals were dismissed. In 2019 the applicant’s resumed confinement in a custodial clinic was ordered. The TBS order was extended and was still in place at the time of the Court’s judgment.

Law – Article 8: The impugned measures had interfered with the applicant’s right to respect for his private life, had been in accordance with the law and had pursued the legitimate aims of ensuring public safety and preventing disorder or crime. The Court therefore had to determine whether they had been “necessary in a democratic society”.

On account of his mental condition the applicant was more vulnerable than an average “settled migrant” facing expulsion. Although his convictions had included crimes of a violent and a sexual nature neither the Deputy Minister nor the administrative court, when assessing the “nature and seriousness of the applicant’s offence”, had taken into account the fact that he had been, in the criminal court’s view, suffering from a serious mental illness, which had reduced his criminal culpability, at the moment when he had perpetrated the act in question. The Deputy Minister, in his revocation decision, had only referred to the seriousness of the multiple crimes committed, the extensions of his TBS order, and the remaining risk of reoffending and thus a threat to public order. Upholding those findings, the administrative court had held that the Deputy Minister had rightly given “decisive weight” to the serious crimes that had repeatedly been committed by the applicant.

The fact that more than twenty years had elapsed since the last offence had been committed did not mean, as argued by the applicant, that the authorities had relinquished their right to revoke his residence permit. However, in reaching their conclusion about the existence of a threat to public order in the revocation proceedings, the authorities had failed to sufficiently consider the applicant’s personal circumstances, and particularly the criminal courts’ conclusions in their rulings on the extension of the TBS order, which had been supported by medical evidence. The applicant had shown good behaviour during his TBS treatment and had otherwise made positive progress in the years after the commission of his most recent offence, which had led the criminal court in 2016 to follow the behavioural experts’ advice. The applicant’s mental deterioration and relapse into substance abuse twenty years after his treatment had started, appeared to have been prompted by the Deputy Minister’s intention to revoke his residence permit and the subsequent decisions in the revocation proceedings. Up to that moment his treatment had been aimed at reintegration into Dutch society and thus no steps had been taken to prepare him for a return to Morocco. Moreover, it followed from the criminal court rulings that the “status quo” situation in which the applicant had ended up had had an impact on his medical treatment, his reintegration and the possibility of ending the TBS order. In those circumstances, it had fallen to the authorities to coordinate the various proceedings touching on his right to respect for his private life and to have timely and thoroughly assessed the practical feasibility of his expulsion to Morocco, so as to have afforded due respect to the interests safeguarded by Article 8.

Finally, the Deputy Minister, had merely found that the applicant was an adult male who could be expected to fend for himself after assisted repatriation, that he was or could become familiar with the local language and that he had family in Morocco with whom he had stayed in contact; findings which had been upheld by the administrative court. It did not appear that the domestic authorities had contemplated the medical aspects, including the availability and accessibility in Morocco of medication and treatment matching the applicant’s needs. In the revocation proceedings therefore, the domestic authorities had insufficiently taken into account the difficulties that the applicant might encounter in Morocco due to his mental vulnerability.

Accordingly, and notwithstanding the respondent State’s margin of appreciation, in the circumstances of the present case, the domestic authorities had failed to duly take into account and to properly balance the interests at stake.

Conclusion : violation (unanimously).

Article 41: finding of a violation sufficient just satisfaction in respect of non-pecuniary damage.

(See also Savran v. Denmark [GC], 57467/15, 7 December 2021, Legal Summary )

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

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