THIRD SECTION
DECISION
Application no. 36953/09
A.K.C.
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 30 August 2016 as a Committee composed of:
Helen Keller, President,
Johannes Silvis,
Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 July 2009,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the parties’ submissions,
Having deliberated, decides as follows:
THE FACTS
1. The applicant is a national of Afghanistan, who was born in 1947. He resided in the Netherlands from 1997 to 2012. The President decided that the applicant’s identity was not to be disclosed to the public (Rule 47 § 4). He was initially represented before the Court by Mr M. Strooij who was succeeded by Mr A. Eikelboom, both lawyers practising in Amsterdam.
2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 19 September 1997, after he and his family had first fled Afghanistan in 1994 to go to the Russian Federation, the applicant together with his wife and their two youngest children (born in 1985 and 1987, respectively) entered the Netherlands and applied for asylum, claiming to fear persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”) in Afghanistan. The applicant’s eldest three children (born in 1976, 1978 and 1980, respectively) had initially remained in the Russian Federation but joined their parents and siblings in the Netherlands on a later, unspecified date.
5. On 5 March 2001, following several interviews held with the applicant, the issuance of two person-specific reports (ambtsberichten) and a hearing before the Advisory Board on Matters Concerning Aliens (Adviescommissie voor vreemdelingenzaken), the Deputy Minister of Justice (Staatssecretaris van Justitie) denied the applicant asylum in application of Article 1F of the 1951 Refugee Convention. The applicant’s appeal against this decision was rejected on 2 May 2003 by the Regional Court (rechtbank) of The Hague. At the material time, no further appeal lay against this ruling.
6. On 1 December 2003 the applicant applied for a residence permit on humanitarian grounds, in particular his family life in the Netherlands and the continued Article 3 risk should he be removed to Afghanistan. On 4 April 2007, the Deputy Minister rejected this request and, in addition, imposed an exclusion order (ongewenstverklaring) on the applicant. The applicant unsuccessfully challenged these two decisions in administrative appeal proceedings in which the final decision was given on 17 March 2009 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak).
7. On 29 April 2009 the applicant requested the Deputy Minister to lift the exclusion order imposed on him.
8. On 26 May 2009 the applicant was placed in immigration detention, which he successfully challenged. On 9 June 2009 the Regional Court of The Hague ordered the applicant’s immediate release from immigration detention considering that the authorities had not acted with the required expediency in preparing the applicant’s removal.
9. On 7 July 2009 the applicant was summoned to report to the authorities on 8 July 2009 in order to be placed in immigration detention for removal purposes.
10. On 13 July 2009 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan until further notice.
11. On 18 February 2010 the Deputy Minister rejected the applicant’s request to lift the exclusion order imposed on him. The applicant’s objection (bezwaar) against this decision was rejected by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel) on 3 December 2010. On 31 January 2012 the Minister withdrew the decision of 3 December 2010 and, in a fresh decision of 24 April 2012, he lifted the exclusion order.
12. On 7 January 2013 the Deputy Minister for Security and Justice (Staatssecretaris van Veiligheid en Justitie) imposed an entry ban (inreisverbod) on the applicant. The applicant challenged this decision in administrative appeal proceedings in which the final – for the applicant negative – decision was handed down on 2 July 2014 by the Administrative Jurisdiction Division.
13. On 23 May 2016, the Government informed the Court that the applicant had requested the Deputy Minister on 5 April 2016 to lift the entry ban imposed on him as, since 20 February 2012, he had been living in Belgium where he had been granted a residence permit holding the status of a family member of an EU citizen, in casu his daughter (see Naibzay v. the Netherlands (dec.), no. 68564/12, § 13, 4 June 2013). On 20 June 2016 the applicant confirmed this information.
B. Relevant domestic law and practice
14. The implementation as from 1 January 2012 of EU Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) entailed the replacement of the exclusion order (ongewenstverklaring) for non-EU nationals, which was only valid on the territory of the Netherlands, by the entry ban (inreisverbod), which is valid in the entire Schengen area.
15. This had no consequences for persons on whom an exclusion order had already been imposed and which decisions had obtained the force of res iudicata. Exclusion orders which were not yet final were revoked and replaced by an entry ban with the possibility to challenge this in administrative appeal proceedings.
COMPLAINT
16. The applicant complained under Article 3 of the Convention that, if expelled to Afghanistan, he would be exposed to a real risk of being subjected to treatment prohibited by Article 3 of the Convention.
THE LAW
17. The applicant complained that his removal to Afghanistan would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
18. The Court notes that, according to information submitted by the Government and confirmed by the applicant, he has been granted a Belgian residence permit. Consequently, the factual and legal circumstances forming the basis of the application no longer obtain, as the applicant is no longer at risk of being expelled to Afghanistan where he fears to be subjected to treatment in breach of Article 3 of the Convention.
19. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
20. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 22 September 2016.
Fatoş AracıHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy