DJOKABA LAMBI LONGA v. THE NETHERLANDS

THIRD SECTION

DECISION

Application no. 33917/12
Bède DJOKABA LAMBI LONGA
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 9 October 2012 as a Chamber composed of:

Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 1 June 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Bède Djokaba Lambi Longa, is a national of the Democratic Republic of the Congo, born in 1966. He is currently detained in the United Nations Detention Unit within Scheveningen Prison, The Hague, the Netherlands. He was represented before the Court by Mr W. Eikelboom, Mr F. Schüller and Mr G. Sluiter, lawyers practising in Amsterdam.

A. The circumstances of the case

1. The applicant’s detention in the Democratic Republic of the Congo

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant was a prominent member of the Union of Congolese Patriots (Union des patriotes congolais, “UPC”), a political movement created in the Ituri region of the Democratic Republic of the Congo. The UPC’s military wing, the Forces Patriotiques pour la Libération du Congo, “FPLC”) was one of the armed factions active in that area in recent years.

4. On 19 March 2005 the applicant was arrested in Kinshasa together with other members of the UPC or the FPLC including Thomas Lubanga Dyilo, the UPC’s president and the FPLC’s commander-in-chief.

5. It appears that the applicant was charged with participation or complicity in the murder of nine Bangladeshi members of the United Nations Organization Mission in the Democratic Republic of the Congo (Mission de l’Organisation des Nations unies en République démocratique du Congo, “MONUC”). The applicant has consistently denied these charges.

6. The applicant’s detention on remand was extended several times. The last detention order contained in the Court’s case file expired on 2 July 2007. The applicant states that no subsequent extension of his detention was ever authorised and that he has been detained without legal basis ever since.

2. The applicant’s transfer into the custody of the International Criminal Court

7. On 17 March 2006 Thomas Lubanga Dyilo was arrested under a sealed warrant of arrest of the International Criminal Court and transferred to The Hague. It was announced on 28 August 2006 that Mr Lubanga Dyilo had been charged by the Prosecutor of the International Criminal Court with enlisting, conscripting and using children under 15 years of age to participate actively in hostilities.

8. On 27 March 2011 the applicant was transferred from detention in the Democratic Republic of the Congo into the custody of the International Criminal Court in The Hague to give evidence at Mr Lubanga Dyilo’s trial as a defence witness. It would appear that the applicant consented to this transfer. It is stated in Trial Chamber I’s decision of 5 August 2011 (see below) that the authorities of the Democratic Republic of the Congo undertook to respect the applicant’s privilege against self-incrimination.

9. The applicant gave evidence on various dates between 30 March and 7 April 2011.

3. Proceedings in the International Criminal Court

(a) The applicant’s submissions and argument before the Trial Chamber

10. On 7 April 2011 the applicant lodged a request with Trial Chamber I for “special measures relating to his asylum application”. He stated that he feared reprisals upon his return to the Democratic Republic of the Congo at the hands of members of the government of that country, including President Kabila himself. He also submitted that he had health problems for which he required medical treatment that was not available in the Democratic Republic of the Congo.

11. On 1 June 2011 the applicant lodged an asylum request with the Netherlands authorities (see below). On the same day he asked the International Criminal Court to order “special measures” pursuant to Rule 88 § 1 of the International Criminal Court’s Rules of Procedure and Evidence (see below) in the form of, as relevant to the present case, a stay of his removal to the Democratic Republic of the Congo.

12. The Trial Chamber invited observations from the authorities of the Democratic Republic of the Congo, who asserted that they continued to detain the applicant throughout the entirety of the proceedings, having temporarily transferred only actual custody. In their view, the Convention relating to the Status of Refugees of 28 July 1951 and the Protocol thereto of 31 January 1967 did not take precedence over the Rome Statute of the International Criminal Court, particularly Article 93 thereof (see below).

13. The Netherlands government, in observations received by the Registry of the International Criminal Court on 7 June 2011, submitted that the applicant was in the temporary custody of the International Criminal Court and thus outside the jurisdiction of the host State. However, if an application of asylum was received, the government would consider and decide on it, “whatever the result”. The host State would, however, defer to the assessment of the International Criminal Court as to whether the applicant could be returned safely to the Democratic Republic of the Congo; any safety risks identified by the International Criminal Court were to be resolved by it under its witness-protection programme. In the meantime, the applicant should remain in the care of the International Criminal Court.

14. The International Criminal Court’s Victims and Witnesses Unit, in response to an order given by the Trial Chamber, carried out a risk assessment on the issue of protective measures for the applicant and for certain other witnesses in a different case who had raised similar concerns. This assessment included reviewing transcripts of the applicant’s testimony, evaluating the current political situation in the Democratic Republic of the Congo and meeting with the Director of the detention centre where the applicant had been held (the Makala detention centre, Kinshasa). The Victims and Witnesses Unit concluded that following his return to the Democratic Republic of the Congo the applicant would not be exposed to any additional risk to his security or psychological or physical well-being as a result of his testimony before the International Criminal Court. As to the specific fears which the applicant had expressed that his testimony about influential figures in the Congolese government put him at risk if he returned to the Democratic Republic of the Congo, the Victims and Witnesses Unit expressed the view that the applicant’s evidence did not reveal anything to the Congolese authorities of which they were not aware. Moreover, “the desire of [the applicant] to implicate the Congolese authorities, and particularly President Kabila, [was] public knowledge”. The Victims and Witnesses Unit concluded that it was unlikely that the applicant’s evidence would have an impact on politics within the Democratic Republic of the Congo such as to lead to reprisals. Moreover, assurances had been received from the Congolese authorities that the applicant would receive adequate protection, and the applicant’s safety would be sufficiently secured by continued monitoring once he had been returned to the Makala detention centre.

15. Medical information was available from which it appeared that the applicant had received medical treatment appropriate to his condition and was fit to travel.

(b) The Trial Chamber’s decision

16. On 4 July 2011 Trial Chamber I gave its decision. It recognised that the International Criminal Court had an obligation pursuant to Article 93 § 7 (b) of its Statute and Rule 192 § 4 of its Rules of Procedure and Evidence, as well as under Standard Operating Procedures which had been agreed between its Registry and the Democratic Republic of the Congo, to return the applicant to the Democratic Republic of the Congo once the purposes of his transfer had been fulfilled – which they were, since the applicant had finished giving his evidence. However, Article 21 § 3 of the Statute required the application and interpretation of the applicable law to be consistent with internationally recognised human rights. The Trial Chamber had therefore first to consider the implications of the applicant’s asylum claim.

17. It was for the Netherlands authorities, not for the International Criminal Court, to consider the applicant’s asylum request. The International Criminal Court had, however, to provide a proper opportunity for the Netherlands authorities to do so and for the applicant to make his case. It was for the Netherlands authorities to decide whether it was necessary to intervene in order to take control of the applicant until such time as the asylum proceedings, and any appellate phase in those proceedings, were concluded.

18. The Trial Chamber instructed the Registry to allow the applicant reasonable access to the lawyers representing him for the asylum request; to submit a report on the domestic procedure to be followed in order for the Netherlands to be able to discharge its obligations pursuant to the asylum request before the applicant was returned to the Democratic Republic of the Congo (unless asylum was granted); to liaise with the Congolese authorities, prior to any return of the applicant to the Democratic Republic of the Congo, in order to determine the extent of, and to implement, any protective measures that the Registry considered necessary, and report back accordingly; and to monitor the position of the applicant following his return to the Democratic Republic of the Congo.

(c) Further proceedings in the International Criminal Court

19. On 2 August 2011 the Netherlands Ministry of Foreign Affairs submitted a note verbale informing the Trial Chamber of the need to hold interviews with the applicant and the likelihood of further investigations, as well as ensuing litigation. The note included the following:

“The foregoing administrative and judicial proceedings may take considerable time and the Netherlands requires the detained witness to remain at the International Criminal Court Detention Centre throughout.”

20. On 13 July 2011 the Netherlands government requested leave to appeal against the Trial Chamber’s decision. The Democratic Republic of the Congo submitted a document indicating that it took issue with the decision, which the Chamber decided to treat as a request for leave to appeal. On 4 August 2011 the Trial Chamber granted both requests. On an unknown later date the Appeals Chamber decided that the grant of leave to appeal to the Netherlands was ultra vires and therefore improper.

21. In an order of 15 August 2011, the Trial Chamber reiterated that it was for the Netherlands

“to decide whether, according to its national and international obligations, it [would] take control of the witness until such time as the asylum application and any appellate phase in those proceedings [were] determined”.

Furthermore,

“The Host State [was] urged to consider without delay whether it [intended] to defer [the applicant’s] departure from the Netherlands. The Registry [was] to consult with the Dutch authorities on the transfer of the witness into the ‘control’ of the Netherlands if the Host State [intended] to defer his departure pending its decision on the asylum application. A reasonable time frame for the transfer [was] to be arranged between the Registry and the Host State.”

22. On 26 August 2011 the Netherlands Ministry of Foreign Affairs sent a note verbale to the International Criminal Court in the following terms:

“The position of the Netherlands has consistently been that the witness [i.e., the applicant] is to remain in the custody of the Court during the asylum procedure. In this respect the Netherlands draws attention to its note verbale of 2 August 2011, in which it set out the procedure to be followed by the Netherlands to be able to discharge its obligation pursuant to the asylum request, including the administrative and judicial proceedings. Therein the Netherlands stated that it ‘requires the detained witness to remain at the [International Criminal Court] Detention Centre throughout’.

The witness has been temporarily transferred in custody from the Democratic Republic of the Congo to the Court [i.e., the International Criminal Court] pursuant to an agreement between them under Article 93 § 7 of the Statute. Under this agreement the witness shall remain in custody and shall be returned to the [Democratic Republic of the Congo] when the purposes of the transfer have been fulfilled. This agreement was concluded between the [International Criminal Court] and the [Democratic Republic of the Congo] to facilitate the prosecutions undertaken by the [International Criminal Court]. The Netherlands fails to understand how an obligation to accept undocumented or illegal foreigners into its territory would follow from a bilateral agreement to which it is not a party. The Court does not have the authority under the Statute or the Headquarters Agreement to transfer the witness to the Netherlands, nor does it have the authority to impose such a transfer upon the Host State. Neither, as it was acknowledged by the [International Criminal Court], is the Netherlands obligated to accept the transfer of the witness into its control.

In this regard the Netherlands would also note that under the current circumstances it lacks jurisdiction to keep the witness in custody throughout the consideration of his asylum application.

Moreover, it is not the Netherlands that intends to defer the departure of the witness. The Netherlands notes that the decision reiterated the responsibility of the Court to ensure that the witness has a real – as opposed to a merely theoretical – opportunity to make his request for asylum to the Dutch authorities before his return to the Democratic Republic of the Congo. It is the understanding of the Netherlands that this responsibility implies that the Court will not undertake the transfer of the witness to the [Democratic Republic of the Congo] during the procedure pertaining to the asylum request.

Consequently, the position of the Netherlands remains that the witness is to remain in the custody of the Court pending the consideration of the asylum application. Therefore, the Netherlands does not consider that there is a need to consult with the Registry of the Court at this time.”

23. After a request by the applicant to reconsider its decision of 4 July 2011, the Trial Chamber gave an order on 1 September 2011 which included the following:

“As the Host State has now informed the Chamber that it does not intend to defer the transfer of [the applicant] back to [the Democratic Republic of the Congo] and it has declined to consult with the Registry on the transfer of custody to the Host State, the Request for reconsideration of the Chamber’s Implementation Order is moot.

The judges are of the view that the Chamber has provided the Registry with clear guidance, namely that deferring the departure of [the applicant] was subject to the condition that custody of the witness [i.e., the applicant] is transferred to the Host State pending the latter’s decision on the asylum application. The Chamber has discharged its obligations under Article 21 § 3 of the Statute and it is now for the Host State, to whom the asylum application is directed, to decide whether it is necessary to intervene in order to take control of the witness [i.e., the applicant] until such time as the application and any appellate phase in those proceedings are determined.

It follows that the Registry should proceed with regard to [the applicant] in the way specified in Article 93 § 7 (b) of the Statute and Rule 192(4) of the Rules. ...

In the event that travel is appropriate ... the Registrar should inform the Host State of the intended departure date of [the applicant] to the [Democratic Republic of the Congo]. If at any time before he finally leaves for the [Democratic Republic of the Congo] the Dutch authorities indicate that they intend to take control of the witness, the Registrar is to cooperate in the transfer of [the applicant] to the Host State.”

24. In a decision of 15 December 2011, the Trial Chamber dismissed the applicant’s request to revoke the order for his return to the Democratic Republic of the Congo and instead order his release, conditionally if need be. It added:

“The Court’s Order [of 1 September 2011] remains in force. The Chamber reiterates its instructions to the Registry to prepare for the return of [the applicant] once he is fit to travel, pursuant to Article 93 § 7 (b) of the Statute and Rule 192 § 4 of the Rules. It is for the Dutch authorities to determine whether it is necessary to intervene in order to take control of him for the purposes of conducting any extant national proceedings.

Until [the applicant] returns to the [Democratic Republic of the Congo], he is to remain in detention on the basis of Article 93 § 7 (b) of the Statute, unless custody is transferred to the Dutch authorities at the latter’s request. The Chamber has no competence to review any decision by the [Democratic Republic of the Congo] to detain the witness once he has arrived back in that country, and it is to be noted that in the decision of 4 July 2011 the Chamber examined its responsibilities, based on Article 68 § 1 of the Statute, as regards the return of [the applicant] to the Democratic Republic of the Congo.”

4. The applicant’s asylum request

25. As already mentioned, on 1 June 2011 the applicant lodged a request for asylum with the Netherlands authorities through his lawyer, Mr Schüller. The request stated that the applicant feared persecution if returned to the Democratic Republic of the Congo, having made statements before the International Criminal Court linking the President of that country to war crimes.

26. On an unknown date, but in reply to a letter sent by the applicant’s representative, Mr Schüller, and dated 28 September 2011, the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) stated that since the applicant was not within the jurisdiction of the Netherlands it was not possible for him to request asylum. That being the case, his request would be treated as a request for protection (bescherming), to be considered in the light of the prohibition of refoulement flowing from the 1951 Convention relating to the Status of Refugees and Article 3 of the Convention; it would of course be borne in mind that the applicant was not within Netherlands jurisdiction. It was announced that the applicant would be interviewed.

5. Proceedings in the Netherlands aimed at securing the applicant’s release

(a) Proceedings in the Regional Court

27. Basing his argument on the premise that his detention was a measure under section 59 of the 2000 Aliens Act (Vreemdelingenwet 2000, see below), the applicant lodged an appeal with the Regional Court (rechtbank) of The Hague.

28. The Regional Court gave its decision on 27 October 2011 following adversarial proceedings. It held that although the Netherlands was prepared to give consideration to the applicant’s request for protection and had asked the International Criminal Court to continue the applicant’s detention, the detention of the applicant had not for that reason been brought under the authority or control of the Netherlands authorities.

(b) Proceedings in the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State)

29. The applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State, which gave its decision (Landelijk Jurisprudentie Nummer (National Jurisprudence Number) BW0617) on 22 March 2012 following adversarial proceedings.

30. The Administrative Jurisdiction Division quoted the following from a letter of 19 October 2011 sent by the Registrar of the International Criminal Court to the Ministry of Foreign Affairs:

“On the specific matter of the detained witnesses, the Registrar hereby confirms the position that the four detained witnesses, one attached to the case The Prosecutor vs. Thomas Lubanga Dyilo (ICC 01/04-10/06) [i.e., the applicant], and the remaining three attached to the case The Prosecutor vs. Germain Katanga and Mathieu Ngudjolo Chui (ICC-01/04-01/07), are currently detained under the exclusive authority of the Democratic Republic of the Congo (‘DRC’) following the requests of both Trial Chamber I and Trial Chamber II, respectively, to facilitate their viva voce testimonies at the seat of the Court, pursuant to Article 93 § 7 of the Rome Statute. These persons are currently detained under the custody of the Court, pursuant to Rule 192 § 2 of the Rules of Procedure and Evidence of the Court and to an agreement between the Congolese authorities and the Court.

...

For its part, Trial Chamber I has ordered the Registry to consult also with the Dutch authorities on the transfer of the witness into the control of the Host State pending its decision on the asylum application. With this background into consideration [sic], the Registrar further confirms that the International Criminal Court judges have, at no stage, issued any decision requesting the Host State to assume the custody of the four detained witnesses. ...”

The Administrative Jurisdiction Division’s reasoning included the following:

“2.1.6. It follows from the above that the alien [i.e., the applicant] is detained under an order of the Congolese authorities and that this detention is now taking place in a detention centre that is under the control and authority of the International Criminal Court, at the request and on the responsibility of the International Criminal Court based on Article 93 § 7 of the Statute, Rule 192 of the [International Criminal Court’s Rules of Procedure and Evidence] and the agreement concluded between the Congolese authorities and the International Criminal Court.

2.1.7. Pursuant to Article 88 of the International Criminal Court (Implementation) Act[,] Netherlands law does not apply to deprivation of liberty undergone on the orders of the International Criminal Court in spaces within the Netherlands subject to the authority of the International Criminal Court. Already for that reason the alien’s detention cannot be based on the exercise, or presumed exercise, of any authority delegated to the Minister in the 2000 Aliens Act. The Regional Court therefore rightly held that the tribunals competent to hear cases concerning aliens [vreemdelingenrechter] lack the competence to consider the legality of this detention.

...”

6. Subsequent events

31. On 27 September 2012 the Registrar, duly authorised by the President of the Court, gave urgent notification of the present application to the Netherlands Government (Rule 40 of the Rules of Court). In reply, the Government informed the Court that on 4 September 2012 the applicant had, after consulting his lawyer, Mr Schüller, withdrawn his asylum request. Copies of the applicant’s handwritten withdrawal letter, in French, and of an official record were appended to the Government’s reply.

7. The parallel cases of [A], [B] and [C]

(a) Asylum proceedings

32. On 12 May 2011 three witnesses appearing in a different trial before the International Criminal Court (The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (ICC-01/04-01/07)) lodged requests for asylum with the Netherlands authorities. As a decision was not given within the time-limit set for that purpose by law, they lodged objections against a notional refusal (fictieve weigering); these were declared inadmissible on 6 June 2011. They then appealed to the Regional Court of The Hague.

33. On 28 December 2011 the Regional Court gave its decision. It dismissed the argument of the Minister for Immigration and Asylum that the 2000 Aliens Act was inapplicable to the applicants’ asylum requests. Such an argument could not be based on the Headquarters Agreement, whose Article 8 declared the laws of the Host State applicable save as otherwise provided; nor on the International Criminal Court (Implementation) Act, whose Article 88 contained a provision declaring domestic Netherlands law inapplicable to deprivation of liberty on premises under the authority of the International Criminal Court; nor on the Statute of the International Criminal Court, save in so far as the application of the 2000 Aliens Act might thwart the International Criminal Court in the exercise of its duties – which, given the International Criminal Court’s deference to the Netherlands authorities for a decision on the asylum request, in the view of the International Criminal Court itself was clearly not the case here; nor even on the 2000 Aliens Act itself or on delegated legislation based on it, given that the three witnesses were on Netherlands soil and thus could not seek the protection of any other State on whose territory they were not present, nor of the International Criminal Court, which had no territory. The Minister was accordingly ordered to give a decision on the witnesses’ asylum requests within six months.

34. No appeal was lodged against this decision, which accordingly became final.

35. On 11 June 2012 the Minister for Immigration and Asylum gave notice of his intention (voornemen) to refuse asylum to [B] and [C] on the ground that they were suspected of having committed crimes against humanity within the meaning of Article 1F of the 1951 United Nations Convention on the Status of Refugees. For health reasons, no notice was given in the case of [A].

36. [B] and [C] have submitted their written comments (zienswijze). A decision in their cases was expected in October 2012.

(b) Civil proceedings

37. On an unknown date [A], [B] and [C] summoned the Netherlands State before the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of The Hague, Civil Division, in summary proceedings (kort geding), seeking an order for the State to declare to the International Criminal Court that the State was prepared to take over the applicants from the International Criminal Court and for that purpose to enter into consultation (overleg) in the appropriate and usual way.

38. The Provisional Measures Judge gave judgment on 26 September 2012. He held as follows:

“3.1. The plaintiffs [i.e., [A], [B] and [C]] have based their claim on the ground that the State is committing a tort against them [jegens hen onrechtmatig handelt]. That being the case, the competence of the civil courts – in the present case, the Provisional Measures Judge in summary proceedings – to take cognisance of the claim is established. The plaintiffs’ claim is also admissible, since for what they wish to achieve no other judicial remedy offering adequate guarantees is available.

3.2. The parties differ as to whether the State is under an obligation to declare to the International Criminal Court that it is prepared to take the plaintiffs over from the International Criminal Court and enter into consultations with the International Criminal Court for that purpose.

3.3. The State has stated in its defence that the title of the plaintiffs’ detention lies in the agreements reached between the International Criminal Court and the Democratic Republic of the Congo and that the State cannot and will not exercise jurisdiction over the plaintiffs. According to the State, the Headquarters Agreement requires it only to transport the plaintiffs across Netherlands territory at the request of the International Criminal Court. In support of its position the State has prayed in aid, inter alia, the decision of the Administrative Jurisdiction Division [of 22 March 2012, see paragraphs 29 and 30 above] and the decision of 9 June 2009 given by the European Court of Human Rights (‘the Court’) in the Galić case (no. 22617/07; Nederlandse Jurisprudentie [Netherlands Law Reports] 2010, no. 267). According to the State, the fact that the plaintiffs have lodged an asylum request does not imply either that the Netherlands is obliged to take them over from the International Criminal Court, since the lodging of an asylum request does not grant an entitlement to stay in the Netherlands if the asylum-seeker [verzoeker] from a legal point of view is not actually in the Netherlands [juridisch gezien niet in Nederland verblijft]. In the State’s view, the plaintiffs will have to await the outcome of the asylum proceedings. Only afterwards, in the State’s submission, will it need to be considered whether Article 3 constitutes an obstruction for the return of the plaintiffs to the Democratic Republic of the Congo. The State has pointed out in this connection that the asylum request is being processed with the necessary expedition and that, considering the intentions mentioned ... [see paragraph 35 above], it is likely that the asylum requests of [B] and [C] will be turned down. The State submits that in view of this situation diplomatic consultations are under way which are in a terminal phase.

The Provisional Measures Judge, considering this defence, holds as follows:

3.4. Although it is in itself correct that formally the plaintiffs are in the custody of the Democratic Republic of the Congo, implemented by the International Criminal Court, it cannot be denied, considering also the position of the International Criminal Court, that the plaintiffs are now in a dead-end (detention) situation. Since its decision of 24 August 2011 [in which the International Criminal Court orders its Registrar to enter into consultations with the Netherlands Government], the International Criminal Court considers itself bound by its Statute to return the plaintiffs to the Democratic Republic of the Congo, but the asylum proceedings, which remain pending, prevent an order for their return based on Article 93 § 7 of the Statute. Irrespective of whether – quite apart from the asylum proceedings – it is at all possible for the plaintiffs to be returned to the Democratic Republic of the Congo safely, the fact remains that also in view of the appeals that may be lodged in the asylum proceedings there is no prospect of a speedy end to those proceedings. This means that, as of 24 August 2011, the plaintiffs are no longer lawfully detained [zich niet meer in een rechtmatige vorm van detentie bevinden]. They have no prospect of release or trial within a reasonable time and it is unclear whether they can have the lawfulness of their detention examined by a competent jurisdiction. Neither the International Criminal Court nor the Democratic Republic of the Congo is in a position to put an end to the situation that has now emerged.

3.5. The defence that the State has no jurisdiction over the plaintiffs cannot be followed. It can only be deduced from the decision of the Administrative Jurisdiction Division of the Council of State, which the State cites, that the detention of the plaintiffs is not based on the exercise, or presumed exercise, of powers based on the 2000 Aliens Act, which is correct. This does not make any difference to the possibility that the State may be legally bound to take over the plaintiffs from the International Criminal Court.

3.6. Nor is the comparison with the Galić case apposite. The Court held in that case that the fact that the International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY) had its seat in the Netherlands did not suffice to impute the alleged violations of the applicant’s human rights to the Netherlands. On this point, the Court held as follows:

‘In view of the above, the Court cannot find the sole fact that the ICTY has its seat and premises in The Hague sufficient ground to attribute the matters complained of to the Kingdom of the Netherlands. In arriving at that conclusion the Court has had regard to the particular context in which the question arises before it. The Court stresses that the present case involves an international tribunal established by the Security Council of the United Nations, an international organisation founded on the principle of respect for fundamental human rights, and that moreover the basic legal provisions governing that tribunal’s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees.’

Unlike in the Galić case, which concerned a suspect who was being tried under rules relating to an international tribunal set up by the United Nations and could make use of the (procedural) guarantees of that tribunal, the present case concerns witnesses in proceedings before another United Nations tribunal who, with regard to their detention, cannot actually make use of the guarantees of that tribunal, as is also apparent from the position taken by the International Criminal Court. In this situation it cannot be excluded that the International Criminal Court’s seat in Netherlands territory offers sufficient links to assume that the Netherlands has jurisdiction.

3.7. The above applies in particular given that it is because of the Netherlands asylum proceedings that the plaintiffs cannot be returned to the Democratic Republic of the Congo. It may well be that the asylum requests subvert [doorkruisen] the system provided under international law, but as it is, the State is obliged on the ground of the decision of this court (sitting in Amsterdam) [of 28 December 2011, see paragraph 33 above] – against which it has not appealed – to consider the plaintiffs’ asylum requests. The plaintiffs cannot be blamed for lodging asylum requests.

3.8. Leaving aside the correctness of the defence that an asylum request lodged by persons who are not within (the jurisdiction of) the Netherlands does not create a right to stay in the Netherlands, it remains the case that the State must concern itself with the fate of the plaintiffs and may not leave them in the custody of the International Criminal Court pending the asylum procedures being processed in accordance with the 2000 Aliens Act, the end of which is not yet in sight. The State must therefore enter into consultations with the International Criminal Court to put an end to the unlawful detention of the plaintiffs.

3.9. It follows from the above that the plaintiffs’ claim will be allowed in the following way. The time-limit within which the State must enter into consultations with the International Criminal Court shall be four weeks, to enable the State to make adequate preparations. To the extent that the State fears that the plaintiffs will, after their claim has been allowed, abscond into illegality [in de illegaliteit zullen verdwijnen], it is its responsibility to take appropriate preventive measures.”

39. It is not yet known whether the State has lodged an appeal against this judgment.

B. Relevant domestic law

40. Provisions of domestic law relevant to the case are the following.

1. The Constitution of the Kingdom of the Netherlands (Grondwet voor het Koninkrijk der Nederlanden)

Article 93

“Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.”

Article 94

“Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions.”

2. The General Administrative Law Act (Algemene wet bestuursrecht)

Article 8.1

“1. Any interested party [belanghebbende] can lodge an appeal against an administrative decision [besluit] with the Regional Court. ...”

3. The 2000 Aliens Act

Article 59

“1. If necessary in the interests of public order or national security, [the competent Minister] may, for the purpose of expulsion [uitzetting], order the detention of an alien who:

(a) is not lawfully resident; ...”

Article 93

“1. ... [A] measure taken in pursuance of Chapter 5 of this Act [including Article 59] purporting to restrict or deprive someone of their liberty shall, for the purpose of applying Article 8.1 of the General Administrative Law Act, be equated with an administrative decision. ...”

4. The International Criminal Court (Implementation) Act (Uitvoeringswet Internationaal Strafhof)

Article 45

“1. The International Criminal Court’s requests for cooperation in whatever form, as referred to in Article 93 of its Statute, shall be complied with as desired, as far as possible ...”

Article 85

“...

2. Transit of persons [i.e., other than suspects] who have been transferred, or who have come, to the Netherlands at the request of the International Criminal Court shall take place on the instructions [in opdracht] of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice (Minister van Justitie)].

3. Transport of persons outside the spaces subject to the authority of the International Criminal Court [buiten de onder het gezag van het Strafhof staande ruimten] of persons who have been deprived of their liberty on the orders of the International Criminal Court shall take place on the instructions of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice].

4. The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape.”

Article 86

“1. Transit of persons who are to be handed over to the authorities of a foreign State by the International Criminal Court shall take place on the instructions of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice].

2. The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape.”

Article 87

“1. If witnesses, experts, victims or other persons whose presence is required at the seat of the International Criminal Court, of whatever nationality, come to the Netherlands pursuant to a subpoena or summons [dagvaarding of oproeping] or an arrest warrant issued by the International Criminal Court or in response to a request for admission made by the International Criminal Court to the Netherlands ..., they shall not be subject to prosecution, arrest or any other measure limiting their freedom in respect of facts or convictions preceding their arrival in the Netherlands.

2. The immunity referred to in the first paragraph shall be lost if the person in question, having had the possibility of leaving the Netherlands for fifteen consecutive days from the moment on which his presence was no longer required by the International Criminal Court, has remained in the country or has returned to it after having left.”

Article 88

“Netherlands law shall not apply to deprivation of liberty undergone on the orders of the International Criminal Court in spaces within the Netherlands subject to the authority of the International Criminal Court.”

C. Relevant international law relating to the International Criminal Court

41. In this section, the expression “Court” refers to the International Criminal Court.

1. Rome Statute of the International Criminal Court

Article 3
Seat of the Court

“1. The seat of the Court shall be established at The Hague in the Netherlands (‘the host State’).

2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf.

3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.”

Article 4
Legal status and powers of the Court

“1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.”

Article 21
Applicable law

“1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its previous decisions.

3. The application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”

Article 43
The Registry

“...

6. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. ...”

Article 68
Protection of the victims and witnesses and their participation in the proceedings

“1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in Article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

...

3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in Article 43, paragraph 6.

...”

Article 93
Other forms of cooperation

“1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

...

(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;

(f) The temporary transfer of persons as provided in paragraph 7;

...

(j) The protection of victims and witnesses and the preservation of evidence;

...

(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

...

7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:

(i) The person freely gives his or her informed consent to the transfer; and

(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.

(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.

...”

Article 119
Settlement of disputes

“1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.

2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.”

2. The Headquarters Agreement between the International Criminal Court and the Host State

Article 8
Law and authority on the premises of the Court

“1. The premises of the Court shall be under the control and authority of the Court, as provided under this Agreement.

2. Except as otherwise provided in this Agreement, the laws and regulations of the host State shall apply on the premises of the Court. ...”

Article 26
Witnesses

“1. Witnesses shall enjoy the following privileges, immunities and facilities to the extent necessary for their appearance before the Court for purposes of giving evidence ...:

(a) immunity from personal arrest or detention or any other restriction of their liberty in respect of acts or convictions prior to their entry into the territory of the host State;

...

(e) for purposes of their communications with the Court and counsel in connection with their testimony, the right to receive and send papers and documents in whatever form;

(f) exemption from immigration restrictions or alien registration when they travel for purposes of their testimony;

(g) the same repatriation facilities in time of international crisis as are accorded to diplomatic agents under the Vienna Convention.

...

5. Witnesses shall not be subjected by the host State to any measure which may affect their appearance or testimony before the Court.”

Article 34
Cooperation with the competent authorities

“1. The Court shall cooperate with the competent authorities to facilitate the enforcement of the laws of the host State, to secure the observance of police regulations and to prevent the occurrence of any abuse in connection with the privileges, immunities and facilities accorded under this Agreement.

2. The Court and the host State shall cooperate on security matters, taking into account the public order and national security of the host State.

3. Without prejudice to their privileges, immunities and facilities, it is the duty of all persons enjoying such privileges, immunities and facilities to respect the laws and regulations of the host State. They also have the duty not to interfere in the internal affairs of the host State.

4. The Court shall cooperate with the competent authorities responsible for health, safety at work, electronic communications and fire prevention.

5. The Court shall observe all security directives as agreed with the host State, as well as all directives of the competent authorities responsible for fire prevention regulations.

6. The host State will use its best efforts to notify the Court of any proposed or enacted national laws and regulations having a direct impact on the privileges, immunities, facilities, rights and obligations of the Court and its officials. The Court shall have the right to provide observations as to proposed national laws and regulations.”

Article 44
Transport of persons in custody

“1. The transport, pursuant to the Statute and the Rules of Procedure and Evidence, of a person in custody from the point of arrival in the host State to the premises of the Court shall, at the request of the Court, be carried out by the competent authorities in consultation with the Court.

2. The transport, pursuant to the Statute and the Rules of Procedure and Evidence, of a person in custody from the premises of the Court to the point of departure from the host State shall, at the request of the Court, be carried out by the competent authorities in consultation with the Court.

3. Any transport of persons in custody in the host State outside the premises of the Court shall, at the request of the Court, be carried out by the competent authorities in consultation with the Court.

...”

3. The Rules of Procedure and Evidence

Rule 16
Responsibilities of the Registrar relating to victims and witnesses

“...

2. In relation to victims, witnesses and others who are at risk on account of testimony given by such witnesses, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules:

(a) Informing them of their rights under the Statute and the Rules, and of the existence, functions and availability of the Victims and Witnesses Unit;

(b) Ensuring that they are aware, in a timely manner, of the relevant decisions of the Court that may have an impact on their interests, subject to provisions on confidentiality.

...

4. Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential.”

Rule 17
Functions of the Unit

“1. The Victims and Witnesses Unit shall exercise its functions in accordance with Article 43, paragraph 6.

2. The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate:

(a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances:

(i) Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection;

(ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures;

(iii) Assisting them in obtaining medical, psychological and other appropriate assistance;

(iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality;

(v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate;

(vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule;

(b) With respect to witnesses:

(i) Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony;

(ii) Assisting them when they are called to testify before the Court; ...”

Rule 87
Protective measures

“1. Upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to Article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure. ...”

Rule 88
Special measures

“1. Upon the motion of the Prosecutor or the defence, or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may, taking into account the views of the victim or witness, order special measures such as, but not limited to, measures to facilitate the testimony of a traumatized victim or witness, a child, an elderly person or a victim of sexual violence, pursuant to Article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the special measure is sought prior to ordering that measure.

2. A Chamber may hold a hearing on a motion or a request under sub-rule 1, if necessary in camera or ex parte, to determine whether to order any such special measure, including but not limited to an order that a counsel, a legal representative, a psychologist or a family member be permitted to attend during the testimony of the victim or the witness. ...”

Rule 192
Transfer of a person in custody

“1. Transfer of a person in custody to the Court in accordance with Article 93, paragraph 7 [of the Rome Statute], shall be arranged by the national authorities concerned in liaison with the Registrar and the authorities of the host State.

2. The Registrar shall ensure the proper conduct of the transfer, including the supervision of the person while in the custody of the Court.

3. The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber.

4. In accordance with Article 93, paragraph 7 (b) [of the Rome Statute], when the purposes of the transfer have been fulfilled, the Registrar shall arrange for the return of the person in custody to the requested State.”

4. Regulations of the Registry

Regulation 96
Protection programme

“1. The Registry shall take all necessary measures to maintain a protection programme for witnesses, including accompanying support persons, and others considered to be at risk of harm and/or death on account of a testimony given by such witnesses or as a result of their contact with the Court.

2. An application for inclusion in the protection programme may be filed by the Prosecutor or by counsel.

3. In assessing admission to the protection programme, in addition to the factors set out in Article 68, the Registry shall consider, inter alia, the following:

(a) The involvement of the person before the Court;

(b) Whether the person himself or herself, or his or her close relatives are endangered because of their involvement with the Court; and

(c) Whether the person agrees to enter the protection programme.

4. Inclusion in the protection programme shall be subject to the decision of the Registrar after the assessment made under sub-regulation 3.

5. Before being included in the protection programme, the person or – where the person is under the age of 18 or otherwise lacks the legal capacity to do so – his or her representative, shall sign an agreement with the Registry.”

5. Relevant International Criminal Court case-law

42. In a decision of 2 December 2009 in the case concerning Jean-Pierre Bemba Gombo (Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’), the Appeals Chamber of the International Criminal Court held as follows (footnote references omitted).

“104. The Appeals Chamber, for the reasons explained below determines that the Pre-Trial Chamber erred in deciding that Mr Bemba should be released with conditions without also specifying the appropriate conditions or identifying a State willing to accept Mr Bemba and enforce the conditions.

105. In the Appeals Chamber’s view, a decision on interim release as already explained in paragraph 59 above is not discretionary. If the Pre-Trial Chamber is satisfied that the conditions set forth in Article 58 § 1 of the Statute are not met, it shall release the person, with or without conditions. If, however, the release would lead to any of the risks described in Article 58 § 1 (b) of the Statute, the Chamber may, pursuant to Rule 119 of the Rules of Procedure and Evidence, examine appropriate conditions with a view to mitigating or negating the risk. As the list of conditions in Rule 119 § 1 of the Rules of Procedure and Evidence indicates, the Chamber may also, in appropriate circumstances, impose conditions that do not, per se, mitigate the risks described in Article 58 § 1 (b) of the Statute. The result of this two-tiered examination is a single unseverable decision that grants conditional release on the basis of specific and enforceable conditions. Put differently, in such circumstances, release is only possible if specific conditions are imposed.

106. Furthermore, the Appeals Chamber considers that in order to grant conditional release the identification of a State willing to accept the person concerned as well as enforce related conditions is necessary. Rule 119 § 3 of the Rules of Procedure and Evidence obliges the Court to seek, inter alia, the views of the relevant States before imposing or amending any conditions restricting liberty. It follows that a State willing and able to accept the person concerned ought to be identified prior to a decision on conditional release.

107. In addition, the Appeals Chamber notes that the International Criminal Court exercises its functions and powers on the territories of States Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the Court are enforced. Without such cooperation, any decision of the Court granting conditional release would be ineffective.

108. In the circumstances of this case, the Appeals Chamber notes that the Pre-Trial Chamber, after concluding its examination of the conditions under Article 58 § 1 of the Statute, decided that Mr Bemba should be ‘released, albeit under conditions’. The Chamber went on to clarify that the set of conditions to be imposed will be determined at a later stage. Furthermore, at paragraph 83 of the Impugned Decision, the Chamber reiterated that ‘no ruling is rendered on the question [of] which set or type of conditions restricting liberty are deemed appropriate to be imposed on Mr Jean-Pierre Bemba and in which State he shall be conditionally released’. Finally, at the operative part of the Impugned Decision, paragraph (a), the Pre-Trial Chamber decided to grant Mr Bemba conditional release until decided otherwise. Thus in the instant case, the Impugned Decision is flawed because the Pre-Trial Chamber failed to specify the appropriate conditions that make the conditional release of Mr Bemba feasible.

109. For these reasons, the Appeals Chamber determines that the Pre-Trial Chamber erred in granting conditional release without specifying the appropriate conditions that make conditional release feasible, identifying the State to which Mr Bemba would be released and whether that State would be able to enforce the conditions imposed by the Court.”

43. In its decision of 9 June 2011 concerning the three defence witnesses (the above-mentioned [A], [B] and [C]) in the case of Germain Katanga and Mathieu Ngudjolo Chui (“Decision on an Amicus Curiae application and on the ‘Requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins d’asile’ (Articles 68 and 93 § 7 of the Statute)”), Trial Chamber II held as follows (footnote references omitted).

“1. What is the precise scope of the duty to protect witnesses as enshrined, inter alia, in Article 68 of the Statute?

a. Necessary distinctions

59. At the status conference, the Chamber stressed the distinction which must be made between measures which the Court may take pursuant to Article 68 of the Statute in order to protect witnesses on account of their cooperation with the Court, and those which it is requested to take in order to protect them against potential or proven human rights violations in the broad sense of the term. The Chamber adds that these two types of measures should not be confused with those which, more specifically, protect asylum applicants from the risk of persecution they might suffer if they returned to their country of origin.

60. These distinctions form the theoretical underpinning of this decision. While the Chamber is cognisant of how the overall human rights situation, in the broad sense of the term, of a given country may influence the assessment of the risks faced by witnesses as a result of their cooperation with the Court, the three types of risks set out above must not be conflated, so as not to misconstrue the Court’s mandate with respect to witness protection.

61. In the Chamber’s view, the Statute unequivocally places an obligation on the Court to take all protective measures necessary to prevent the risk witnesses incur on account of their cooperation with the Court. That is the one and only appropriate interpretation of Article 68 of the Statute, which is a framework provision on the matter. Furthermore, although Rule 87 of the Rules and Regulation 96 of the Regulations of the Registry do not state so explicitly, a logical and joint reading of these two provisions supports the view that the role of the Court is restricted to protecting witnesses from the risk they face on account of their testimony.

62. Contrary to the submissions of Duty Counsel and the Defence for Germain Katanga, the Chamber is of the view that it is not duty-bound to protect witnesses against risks which they might face not only as a result of their testimony but also as a result of human rights violations by the [Democratic Republic of the Congo]. By virtue of its mandate, the Court protects witnesses from risks arising specifically from their cooperation with it, not those arising from human rights violations by the authorities of their country of origin. Article 21 § 3 of the Statute does not place an obligation on the Court to ensure that States Parties properly apply internationally recognised human rights in their domestic proceedings. It only requires the Chambers to ensure that the Statute and the other sources of law set forth at Article 21 § 1 and 21 § 2 are applied in a manner which is not inconsistent with or in violation of internationally recognised human rights.

63. Nor is the Court duty-bound to assess the risks of persecution faced by witnesses who are applying for asylum. In this respect, the Chamber reiterates its observation at the status conference that the criteria for considering an application for asylum, in particular those pertaining to the risk of persecution incurred by the applicants, are not identical to the criteria applied by the Court to assess the risks faced by witnesses on account of their testimony before the Court.

64. Accordingly, it cannot endorse the host State’s argument that the Chamber should conduct an assessment of the risks faced by the witnesses in light of the principle known as ‘non-refoulement’ ... which is enshrined in several international instruments, including Article 33 of the Geneva Convention of 28 July 1951. Admittedly, as an international organisation with a legal personality, the Court cannot disregard the customary rule of non-refoulement. However, since it does not possess any territory, it is unable to implement the principle within its ordinary meaning, and hence is unlikely to maintain long-term jurisdiction over persons who are at risk of persecution or torture if they return to their country of origin. In the Chamber’s view, only a State which possesses territory is actually able to apply the non-refoulement rule. Furthermore, the Court cannot employ the cooperation mechanisms provided for by the Statute in order to compel a State Party to receive onto its territory an individual invoking this rule. Moreover, it cannot prejudge, in lieu of the Host State, obligations placed on the latter under the non-refoulement principle. In this case, it is therefore incumbent upon the Dutch authorities, and them alone, to assess the extent of their obligations under the non-refoulement principle, should the need arise.

b. Role of the Chamber

65. Currently faced with the disagreements between the VWU [the Victims and Witnesses Unit] and Duty Counsel, the Chamber has not yet ruled on the need to implement operational protective measures, within the meaning of Article 68 of the Statute, for the three detained witnesses in order to obviate the risks they face on account of their testimony. The Chamber notes that, on 24 May 2011, it ordered the VWU, on the basis, inter alia, of discussions with the authorities of the [Democratic Republic of the Congo], to conduct a final assessment of the risks those witnesses might incur and of the protective measures which might be implemented for them. A report on the discussions and the possible resulting proposals was filed by the Registrar on 7 June 2011. In the event of disagreement between the party calling the witness and the Registry after the parties and participants have made their submissions, the Chamber will, in accordance with a previous Appeals Chamber judgment, issue a decision on instituting the operational protective measures which it considers it may adopt within the scope of its mandate.

66. However, in light of the distinction established above, that decision cannot prejudice the ongoing asylum procedure before the Dutch authorities. The Chamber will now address the asylum procedure.

2. Is an immediate application of the provisions of Article 93 § 7 of the Statute consistent with internationally recognised human rights?

67. As for any other individual, whether detained or not, the three witnesses in question are afforded the right to submit an application for asylum. In addition to the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the Status of Refugees, Article 14 of the Universal Declaration of Human Rights of 1948 provides that everyone has the right to seek and to enjoy in other countries asylum from persecution. Furthermore, the United Nations General Assembly has adopted a Declaration on Territorial Asylum enshrining the right to seek and to enjoy asylum. The Chamber also notes that Article 18 of the Charter of Fundamental Rights of the European Union adopted on 7 December 2000 guarantees the right to asylum with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the Status of Refugees and in accordance with the Treaty establishing the European Community, and that Article 19 § 2 of that Charter recalls that no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. The Chamber further notes that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 sets forth a similar rule to that contained in the Geneva Convention of 1951 and, although narrower in scope, has acquired customary status. It prohibits a State from expelling or extraditing a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

68. The ‘non-refoulement’ principle is considered to be a norm of customary international law and is an integral part of international human rights protection. All individuals are entitled to enjoy its application by a State.

69. The Chamber cannot therefore disregard the importance of the rights invoked in Duty Counsel’s Application. In addition to the aforementioned right to apply for asylum, the Chamber must also pay particular attention to the right to effective remedy, as enshrined, inter alia, in Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, Article 13 of the European Convention on Human Rights, Article 7 of the African Charter of Human and Peoples’ Rights, and Article 25 of the American Convention on Human Rights. The Chamber cannot disregard this fundamental rule and stresses that, in order for the asylum procedure to be effective, there must be open recourse to it, both in law and in practice, and that there must be no obstacles to the entering of an application for asylum as a result of acts or omissions that may be imputed to the Court.

70. As provided in Article 21 § 3 of the Statute, the Chamber must apply all of the relevant statutory or regulatory provisions in such a way as to ensure full exercise of the right to effective remedy, which is clearly derived from internationally recognised human rights.

71. In the matter at hand, the three detained witnesses were transferred to the Court pursuant to Article 93 § 7 of the Statute for the purposes of giving testimony. Article 93 § 7 further provides that the transferred person shall remain in custody and that when the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State – in this case, the [Democratic Republic of the Congo].

72. The witnesses completed their testimony on Tuesday, 3 May 2011. At this juncture, the Chamber considers that it must settle only the issue of whether an immediate application of Article 93 § 7 of the Statute would not constitute a violation of the detained witnesses’ rights to apply for asylum.

73. As matters stand, the Chamber is unable to apply Article 93 § 7 of the Statute in conditions which are consistent with internationally recognised human rights, as required by Article 21 § 3 of the Statute. If the witnesses were to be returned to the [Democratic Republic of the Congo] immediately, it would become impossible for them to exercise their right to apply for asylum and they would be deprived of the fundamental right to effective remedy. Furthermore, were the Chamber to decide to oblige the Host State to cooperate with the Court in order to return the witnesses to the [Democratic Republic of the Congo] immediately by transporting them to the airport, it would be constraining the Netherlands to violate the witnesses’ rights to invoke the non-refoulement principle.

74. Moreover, the Chamber is of the view that it need not rule on the issue of the witnesses’ legal status, which has been discussed at length. In this respect, the Dutch authorities have clearly indicated on several occasions that, in the event that an application for asylum is submitted to them – as has already happened in the instant case – they would be obliged to consider it. Indeed, they also confirmed, as did the Registry, that Article 44 of the Headquarters Agreement applies in this case. Nor is it necessary, in the Chamber’s view, to rule on the alleged legal effects of the immunities which the witnesses enjoy, since it considers this argument to be unfounded.

...

I. Conclusion and consequences

79. For all of the aforementioned reasons, the Chamber decides at this point to delay the return of the three detained witnesses, in so far as the issue of their protection within the meaning of Article 68 of the Statute has not yet been resolved, and as their return ‘without delay’ would breach internationally recognised human rights. Accordingly, it instructs the Registry to inform the United Nations Security Council of the situation of Witness DRC-D02-P-0236 and to notify it of this decision.

80. For the time being, the witnesses under a detention order issued by the Congolese authorities shall remain detained in the custody of the Court pursuant to Article 93 § 7 of the Statute and Rule 192 of the Rules. The Chamber does not endorse the Registry’s argument that their continued detention would have no legal basis now that they have completed their testimony before the Court.

81. In the Chamber’s view, the legal instruments cited above authorise the Court to maintain the witnesses in its custody. Those provisions shall continue to apply until such time as the Chamber has ruled on the critical issue of whether the obligation under Article 93 § 7 of the Statute to return the witnesses can be implemented without contravening the Court’s other obligations under Article 68 of the Statute and without violating the three witnesses’ internationally recognised human rights.”

D. Other relevant international law

1. The International Criminal Tribunal for the Former Yugoslavia

44. The International Criminal Tribunal for the Former Yugoslavia was established by United Nations Security Council Resolution S/RES/827 of 25 May 1993. Annexed to this Resolution was the Statute of that Tribunal, which contains the following provision:

Article 15
Rules of procedure and evidence

“The judges of the International Tribunal shall adopt rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.”

45. The Rules of Procedure and Evidence adopted in pursuance of that provision, in their relevant part, provide as follows:

Rule 90 bis
Transfer of a Detained Witness

“(A) Any detained person whose personal appearance as a witness has been requested by the Tribunal shall be transferred temporarily to the detention unit of the Tribunal, conditional on his return within the period decided by the Tribunal.

(B) The transfer order shall be issued by a Judge or Trial Chamber only after prior verification that the following conditions have been met:

(i) the presence of the detained witness is not required for any criminal proceedings in progress in the territory of the requested State during the period the witness is required by the Tribunal;

(ii) transfer of the witness does not extend the period of his detention as foreseen by the requested State;

(C) The Registry shall transmit the order of transfer to the national authorities of the State on whose territory, or under whose jurisdiction or control, the witness is detained. Transfer shall be arranged by the national authorities concerned in liaison with the host country and the Registrar.

(D) The Registry shall ensure the proper conduct of the transfer, including the supervision of the witness in the detention unit of the Tribunal; it shall remain abreast of any changes which might occur regarding the conditions of detention provided for by the requested State and which may possibly affect the length of the detention of the witness in the detention unit and, as promptly as possible, shall inform the relevant Judge or Chamber.

(E) On expiration of the period decided by the Tribunal for the temporary transfer, the detained witness shall be remanded to the authorities of the requested State, unless the State, within that period, has transmitted an order of release of the witness, which shall take effect immediately.

(F) If, by the end of the period decided by the Tribunal, the presence of the detained witness continues to be necessary, a Judge or Chamber may extend the period on the same conditions as stated in Sub-rule (B).”

2. The NATO Status of Forces Agreement

46. The member States of the North Atlantic Treaty Organisation (NATO) have entered into an agreement (Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, London, 19 June 1951, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) – “NATO Status of Forces Agreement”). It regulates, among other things, criminal jurisdiction over members of their armed forces serving on each other’s territory. Article VII of this Agreement, in its relevant parts, provides as follows.

“1. Subject to the provisions of this Article,

a. the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State;

b. the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.

2. a. The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State.

...

3. In cases where the right to exercise jurisdiction is concurrent the following rules shall apply:

a. The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to

i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent;

ii. offences arising out of any act or omission done in the performance of official duty.

b. In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction.

c. If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.

4. The foregoing provisions of this Article shall not imply any right for the military authorities of the sending State to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving State, unless they are members of the force of the sending State.

5. a. The authorities of the receiving and sending States shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions.

b. The authorities of the receiving State shall notify promptly the military authorities of the sending State of the arrest of any member of a force or civilian component or a dependent.

c. The custody of an accused member of a force or civilian component over whom the receiving State is to exercise jurisdiction shall, if he is in the hands of the sending State, remain with that State until he is charged by the receiving State.

6. a. The authorities of the receiving and sending States shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offence. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them.

...

10. a. Regularly constituted military units or formations of a force shall have the right to police any camps, establishment or other premises which they occupy as the result of an agreement with the receiving State. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises.

b. Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force. ...”

47. An additional agreement concluded in 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces, Brussels, 19 June 1995) extends the territorial application of this provision to non‑NATO member States participating in the Partnership for Peace.

3. The Scottish Court in the Netherlands

48. On 18 September 1998 the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Kingdom of the Netherlands, acting in pursuance of a resolution of the Security Council under Chapter VII of the United Nations Charter (Resolution 1192 of 27 August 1998), concluded an agreement under which the Netherlands government undertook to host a Scottish Court for the purpose and the duration of a trial under Scots law and procedure of two Libyan nationals accused of bombing a civilian passenger aircraft over Lockerbie, Scotland, in 1988 (Agreement between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom of Great Britain and Northern Ireland concerning a Scottish trial in the Netherlands (with annexes), [2002] 2062 United Nations Treaty Series, pp. 81 et seq.). The Scottish Court in the Netherlands existed until 2002.

49. Article 6 of the Agreement, entitled “Law and Authority on the Premises of the Scottish Court”, provided as follows:

“(1) The premises of the Scottish Court shall be under the control and authority of the Scottish Court, as provided in this Agreement.

(2) Except as otherwise provided in this Agreement, the laws and regulations of the host country shall apply within the premises of the Scottish Court.

(3) The Scottish Court shall have the power to make regulations operative on the premises of the Scottish Court for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions. The Scottish Court shall promptly inform the competent authorities of regulations thus made in accordance with this paragraph. No law or regulation of the host country, which is inconsistent with a regulation of the Scottish Court, shall, to the extent of such inconsistency, be applicable within the premises of the Scottish Court.

(4) Any dispute between the Scottish Court and the host country as to whether a regulation of the Scottish Court is authorised by this Article, or as to whether a law or regulation of the host country is inconsistent with any regulation of the Scottish Court authorised by this Article, shall be promptly settled by the procedure set out in Article 28 [i.e., negotiation and consultation between the Parties]. Pending such settlement, the regulation of the Scottish Court shall apply and the law or regulation of the host country shall be inapplicable within the premises of the Scottish Court to the extent that the Scottish Court claims it to be inconsistent with its regulation.”

50. The United Kingdom gave effect to the Agreement by means of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 (Statutory Instruments 1998, no. 2251), which, in its relevant part, provides as follows:

Witnesses

“12. (1) Witnesses in the United Kingdom who are cited to appear for the purpose of proceedings being conducted by virtue of this Order may be cited to appear at the premises of the court.

(2) Any warrant for the arrest of a witness shall be authority for him to be transferred, under arrangements made in that regard by the Secretary of State, to the premises of the court.

(3) It shall be competent for witnesses who are outwith the United Kingdom to be cited to appear before the High Court of Justiciary sitting in the Netherlands in the same way as if the court had been sitting in Scotland and, accordingly, sub‑section (1)(b) of section 2 of the Criminal Justice (International Co-operation) Act 1990 (service of United Kingdom process overseas) shall have effect as if the reference to a court in the United Kingdom included the High Court of Justiciary sitting, by virtue of this Order, in the Netherlands.”

COMPLAINTS

51. The applicant complained under Article 5 § 1 of the Convention that his continued detention in the United Nations Detention Unit was unlawful. The Congolese title for his detention, such as it was, had expired on 2 July 2007 and had not been renewed. The International Criminal Court had no legal ground to keep him detained after he had given evidence. The Netherlands authorities had never even claimed that there was a basis for the applicant’s detention in Netherlands domestic law.

52. The applicant alleged a violation of Article 5 § 3 in that, assuming his detention were justified under Article 5 § 1 (c) of the Convention, he had not been brought to trial within a reasonable time.

53. The applicant alleged a violation of Article 5 § 4 of the Convention in that the Netherlands had refused even to consider reviewing the lawfulness of his detention. He also alleged a violation of Article 5 § 5.

54. Finally, the applicant alleged a violation of Article 13 of the Convention in that he had not had any effective remedy in the domestic legal system by which to challenge the legality of his detention. At the same time, there was no procedure within the International Criminal Court attended by adequate safeguards.

THE LAW

A. Whether the application should be struck out of the Court’s list of cases

55. The Court was made aware by the Government that the applicant had withdrawn his request for asylum on 4 September 2012. This unambiguously entails the applicant’s relinquishment of his efforts to seek an order from the Netherlands authorities for his release from custody. The applicant did not so inform the Court himself (Rule 47 § 6 of the Rules of Court), nor did he withdraw his application. The Court is thus left in some uncertainty as to whether the applicant wishes it nonetheless to address the merits of his case.

56. In these circumstances, it is for the Court itself to decide whether it should strike the application out of its list of cases, in accordance with Article 37 § 1 of the Convention, which reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

57. The Court observes, however, that the application raises important questions with regard to the application of Article 1 of the Convention. In particular, it notes that the application touches on essential aspects of the functioning of international criminal tribunals having their seat within the territory of a Contracting State and being vested with the power to keep individuals in custody. It considers that an answer to the questions posed by the present application is urgently required given the uncertainty that has arisen from the judgment given by the Provisional Measures Judge on 26 September 2012 (see paragraph 38 above).

58. The Court has repeatedly stated that its “judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties” (see Karner v. Austria, no. 40016/98, § 26, ECHR 2003‑IX). Bearing in mind its task to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto” (Article 19 of the Convention), which it does primarily by providing individual relief, the Court notes that its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States.

59. The Court considers therefore that it should not strike the application out of its list (see, mutatis mutandis, Tyrer v. the United Kingdom, 25 April 1978, §§ 26-27, Series A no. 26, and Karner, cited above).

B. Alleged violation of Articles 5 and 13 of the Convention

60. The applicant complained that he was being unlawfully held on Netherlands soil and was denied any opportunity to seek his release. He relied on Articles 5 and 13 of the Convention, which, in their relevant parts, provide as follows:

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention 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;

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Jurisdiction

61. Article 1 of the Convention reads as follows:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

As provided by this Article, the engagement undertaken by a Contracting State is confined to “securing” (“reconnaître” in the French text) the listed rights and freedoms to persons within its own “jurisdiction”. “Jurisdiction” under Article 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see, as recent authorities, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 70, ECHR 2012, and Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 74, ECHR 2011).

(a) The applicant’s submissions

62. It was the applicant’s position that the Netherlands could and should exercise jurisdiction in relation to his detention. He pointed out that the Netherlands authorities had accepted jurisdiction to consider his request for asylum; he submitted that the Netherlands could not be allowed to accept what he called “à la carte jurisdiction” arbitrarily.

63. The applicant was detained on the territory of the Netherlands. The application of Netherlands law on the premises of the International Criminal Court was not ruled out; on the contrary, Article 8 of the Headquarters Agreement (see paragraph 41 above) took as its starting-point its applicability. The Convention was directly applicable as Netherlands law, by virtue of Articles 93 and 94 of the Constitution of the Kingdom of the Netherlands (see paragraph 40 above), and thus applied to the applicant ratione loci; it therefore overrode Article 88 of the International Criminal Court (Implementation) Act.

64. Unlike the applicant in Galić v. the Netherlands (dec.), no. 22617/07, 9 June 2009, the present applicant was not complaining about an act or omission imputable to any international body. The International Criminal Court, he submitted, had acknowledged that it no longer had any valid title for his detention; it continued to hold him solely for the purposes of the asylum proceedings pending in the Netherlands. It was the Government of the Netherlands which had so far prevented his transfer into their custody, by sending to the International Criminal Court notes verbales requiring his continued detention on its premises, by refusing even to discuss his transfer into their custody, and by refusing to intervene on his behalf to end his detention. This confirmed, however, that his continued detention was the direct and unequivocal result of acts and omissions imputable to the Netherlands.

65. In the alternative, in the event that the Court should find that the applicant was detained under the authority of the International Criminal Court, he argued that the Netherlands was not for that reason absolved from its obligations towards him under the Convention.

66. Referring to the practice of the former European Commission of Human Rights, in particular M. & Co. v. Germany (no. 13258/87, Commission decision of 9 February 1990, Decisions and Reports (DR) 64) and Heinz v. Contracting States also parties to the European Patent Convention (no. 21090/92, Commission decision of 10 January 1994, DR 76‑A), and case-law of the Court, namely Matthews v. the United Kingdom ([GC], no. 24833/94, ECHR 1999‑I), Waite and Kennedy v. Germany ([GC], no. 26083/94, ECHR 1999‑I) and Prince Hans-Adam II of Liechtenstein v. Germany ([GC], no. 42527/98, ECHR 2001‑VIII), the applicant argued that the level of human rights protection offered by the International Criminal Court was insufficient for his needs as there was nothing in the treaties and rules governing the functioning of the International Criminal Court that covered his unique situation of detention. Moreover, even with respect to the International Criminal Court’s suspects the level of protection was insufficient: the judgment of 2 December 2009 in the Jean-Pierre Bemba Gombo case (see paragraph 42 above) made it clear that even conditional release of a suspect was impossible if no State could be found willing to accept him and able to ensure compliance with any conditions.

67. In sum, the applicant’s alternative argument was that the presumption first expressed in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, § 156, ECHR 2005‑VI) – namely, provided that fundamental rights were protected in a manner which could be considered at least equivalent to that for which the Convention provides, State action taken in compliance with legal obligations flowing from membership of an international organisation was in accordance with the requirements of the Convention – had been rebutted and that it was accordingly the responsibility of the Netherlands to step in.

(b). The Court’s assessment

68. The Court will consider the three pillars of the applicant’s argument in turn.

(i) The territorial principle

69. The concept of “jurisdiction” as it is to be understood in public international law and also within the meaning of Article 1 of the Convention is primarily territorial. Convention liability normally arises in respect of an individual who is “within the jurisdiction” of a Contracting State, in the sense of being physically present on its territory. However, exceptions have been recognised in the Court’s case-law. In particular, the Court has accepted restrictions on the right of access to court, as embodied in Article 6 § 1 of the Convention, resulting from generally recognised rules of public international law on State immunity (see McElhinney v. Ireland [GC], no. 31253/96, § 38, ECHR 2001‑XI; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 56, ECHR 2001‑XI; and Fogarty v. the United Kingdom [GC], no. 37112/97, § 38, ECHR 2001‑XI). The Court has also accepted that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights (see Waite and Kennedy, cited above, § 67).

70. In its decisions in Galić (cited above, § 44) and Blagojević v. the Netherlands ((dec.), no. 49032/07, § 44, 9 June 2009), the Court found that it was not axiomatic that a criminal trial would engage the responsibility under public international law of the State on whose territory it was conducted. It gave the examples of Article VII of the NATO Status of Forces Agreement, which provided for criminal jurisdiction of the sending State over its own armed forces on the territory of the receiving State, and of the Scottish Court in the Netherlands, which between 1998 and 2002 conducted a trial under Scots law on Netherlands territory.

71. In view of the above, the Court was unable to find the sole fact that the International Criminal Tribunal for the Former Yugoslavia (ICTY) had its seat and premises in The Hague to be sufficient grounds to impute the matters complained of to the Kingdom of the Netherlands. In arriving at that conclusion, the Court had regard to the particular context in which the question arose before it. The Court stressed that the Galić and Blagojević cases involved an international tribunal established by the Security Council of the United Nations, an international organisation founded on the principle of respect for fundamental human rights, and that moreover the basic legal provisions governing that tribunal’s organisation and procedure were purposely designed to provide those indicted before it with all appropriate guarantees.

72. It would, in the Court’s view, be unthinkable for any criminal tribunal, domestic or international, not to be vested with powers to secure the attendance of witnesses, for the prosecution or the defence as the case may be. The power to keep them in custody, either because they are unwilling to testify or because they are detained in a different connection, is a necessary corollary. This power is implied in the case of the NATO Status of Forces Agreement, which in its Article VII grants the sending State extraterritorial powers to try and to police (see paragraph 46 above); explicit provision for it is made for the ICTY in Rule 90 bis of its Rules of Procedure and Evidence (see paragraph 45 above), as it was for the Scottish Court in the Netherlands in section 12 of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 (see paragraph 50 above).

73. The applicant was brought to the Netherlands as a defence witness in a criminal trial pending before the International Criminal Court. He had already been detained in his country of origin and remains in the custody of the International Criminal Court. The fact that the applicant is deprived of his liberty on Netherlands soil does not of itself suffice to bring questions touching on the lawfulness of his detention within the “jurisdiction” of the Netherlands as that expression is to be understood for the purposes of Article 1 of the Convention.

74. It is, however, the applicant’s case that now that he has given his testimony, his continued detention by the International Criminal Court lacks any basis in law. The vacuum thus created can be filled only by the Netherlands legal order, in which the Convention is directly applicable.

75. The Court finds that, for as long as the applicant is neither returned to the Democratic Republic of the Congo nor handed over to the Netherlands authorities at their request, the legal ground for his detention remains the arrangement entered into between the International Criminal Court and the authorities of the Democratic Republic of the Congo under Article 93 § 7 of the Statute of the International Criminal Court. This is reflected in Trial Chamber I’s Order of 1 September 2011 and its Decision of 15 December 2011 (see paragraphs 23 and 24 above), which make it clear that the International Criminal Court is waiting to comply with its obligation under Article 93 § 7 (b) of its Statute to return the applicant to the Democratic Republic of the Congo once the reason for his presence on its premises has ceased to exist. There is thus no legal vacuum.

(ii) The alleged insufficiency of human rights guarantees offered by the International Criminal Court

76. In Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (cited above, §§ 152-56; see also Cooperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij U.A. v. the Netherlands (dec.), no. 13645/05, ECHR 2009), the Court held as follows:

“152. The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue cooperation in certain fields of activity (see M. & Co. [v. the Federal Republic of Germany (no. 13258/87, Commission decision of 9 February 1990, DR 64, p. 138, at p. 144] and Matthews [v. the United Kingdom [GC], no. 24833/94, § 32, ECHR 1999-I]). Moreover, even as the holder of such transferred sovereign power, that organisation is not itself held responsible under the Convention for proceedings before, or decisions of, its organs as long as it is not a Contracting Party (see Confédération française démocratique du travail v. European Communities, no. 8030/77, Commission decision of 10 July 1978, DR 13, p. 231; Dufay v. European Communities, no. 13539/88, Commission decision of 19 January 1989, unreported; and M. & Co., p. 144, and Matthews, § 32, both cited above).

153. On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from scrutiny under the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, pp. 17-18, § 29).

154. In reconciling both these positions and thereby establishing the extent to which a State’s action can be justified by its compliance with obligations flowing from its membership of an international organisation to which it has transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards (see M. & Co., p. 145, and Waite and Kennedy [v. Germany [GC], no. 26083/94], § 67, ECHR 1999‑I]). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see, mutatis mutandis, Matthews, cited above, §§ 29 and 32-34, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII).

155. In the Court’s view, State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides (see M. & Co., cited above, p. 145, an approach with which the parties and the European Commission agreed). By ‘equivalent’ the Court means ‘comparable’; any requirement that the organisation’s protection be ‘identical’ could run counter to the interest of international cooperation pursued ... However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection.

156. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.

However, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a ‘constitutional instrument of European public order’ in the field of human rights (see Loizidou v. Turkey (preliminary objections), judgment of 23 March 1995, Series A no. 310, pp. 27-28, § 75).”

77. It is the applicant’s position that protection of his fundamental rights appropriate to his detention situation is unavailable.

78. The Court has already found, as did the Administrative Jurisdiction Division of the Council of State, that the applicant’s detention had a basis in the provisions of international law governing the functioning of the International Criminal Court and binding also on the Netherlands.

79. The Court observes that the International Criminal Court has powers under Rules 87 and 88 of its Rules of Procedure and Evidence to order protective measures, or other special measures, to ensure that the fundamental rights of witnesses are not violated. It points out that the Trial Chamber actually made use of these powers in its decision of 4 July 2011 (see paragraph 18 above).

80. It cannot be decisive that the orders given by the Trial Chamber in using its said powers will not necessarily result in the applicant’s release from detention by the authorities of the Democratic Republic of the Congo, as the applicant appears to suggest. The Convention does not impose on a State that has agreed to host an international criminal tribunal on its territory the burden of reviewing the lawfulness of deprivation of liberty under arrangements lawfully entered into between that tribunal and States not party to it.

(iii) The acceptance by the Netherlands of jurisdiction to consider the applicant’s asylum request

81. According to the Court’s established case-law, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI; Hirsi Jamaa and Others, cited above, § 113; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 355, ECHR 2012). The Court also notes that the right to political asylum is not contained in either the Convention or its Protocols (see, again among many other authorities, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215; Chahal v. the United Kingdom, 15 November 1996, § 73, Reports 1996‑V; and Hirsi Jamaa and Others, cited above). Furthermore, the Convention does not guarantee, as such, any right to enter, reside or remain in a State of which one is not a national (see, as recent authorities, Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011; H. v. the Netherlands (dec.), no. 37833/10, 18 October 2011; and Kurić and Others, cited above). Finally, States are, in principle, under no obligation to allow foreign nationals to await the outcome of immigration proceedings on their territory (see, mutatis mutandis, Nsona v. the Netherlands, 28 November 1996, § 93, Reports 1996‑V; Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Benamar and Others v. the Netherlands (dec.), no. 43786/04, 5 April 2005; and Haydarie and Others v. the Netherlands (dec.), no. 8876/04, 20 October 2005).

82. The applicant’s argument is that, since the Netherlands has agreed to examine his asylum request, it necessarily follows that the Netherlands has taken it upon itself to review the lawfulness of his detention on the premises of the International Criminal Court – and to order his release, presumably onto its territory, if it finds his detention unlawful.

83. In view of the above-cited case-law, the Court, for its part, fails to see any such connection.

(iv) Conclusion

84. It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

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