F.A.K. v. THE NETHERLANDS

THIRD SECTION

DECISION

Application no. 30112/09
F.A.K.
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 23 October 2012 as a Chamber composed of:

Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 11 June 2009,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government, the observations in reply submitted by the applicant, and the further observations submitted by the Government and the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr F.A.K., is a Libyan national whose date of birth is stated as 1961. The President of the Section decided of his own motion to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). He is resident in the Netherlands. His profession is given on the application form as imam. He was represented before the Court by Mr P.J. Schüller, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Netherlands Ministry for Foreign Affairs.

A. The circumstances of the case

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

3. The applicant applied for asylum in March 1994. He was questioned about the reasons for his asylum request on 31 March 1994 and gave the following account:

The applicant gave his name as A.A., born in 1957. He had travelled on a forged passport in the name of N.A.A. He had been a soldier from 1979 until 1993. He had been trained for three years at a military academy whose name he refused to divulge, such information being a military secret, passing out with the rank of corporal. In 1986 he had been promoted to second lieutenant. He claimed to have been recruited as a member of Jabha-al-Wattaniyya Libiya Li-l-Ingad (Libyan National Liberation Front) after his promotion to commissioned rank, by a colleague from his military academy days; in this capacity he had distributed pamphlets in barracks. In October 1993, following a failed coup attempt against the Gaddafi regime, he had gone into hiding; during this time his house had been raided and searched by armed men who had taken all official documents with them. He had had no trouble leaving Libya because his brother was a member of the Libyan border police. He had flown to Amsterdam via Tunis and Italy. He had met a Moroccan man in an Amsterdam train station who had given him shelter and lodging until the end of the Ramadan holiday, after which he had gone to Rotterdam and applied for asylum. It had been this Moroccan who had advised the applicant to lodge an asylum request, it being impossible to obtain a regular residence permit. According to the report of the interview, the applicant was able more or less to describe the functioning of a Kalashnikov rifle but did not know its calibre, and he was quite unable to describe any service pistol.

4. On 26 April 1994 the Deputy Minister of Justice (Staatssecretaris van Justitie) gave a decision declaring the applicant’s asylum request inadmissible on formal grounds. The applicant had produced no valid border-crossing document, having travelled on a forged passport; and he had failed to report “without delay” after entering the country, having awaited the end of Ramadan. A residence permit on humanitarian grounds was likewise refused.

5. The applicant lodged an administrative objection (bezwaarschrift) on 29 April 1994. Since the objection did not have suspensive effect, he also submitted a request to the competent tribunal for a provisional measure (voorlopige voorziening) aimed at securing a stay of expulsion.

6. On 8 December 1994 the Deputy Minister lodged a written statement in reply. It was stated that the applicant had not told the truth: a Benelux visa in the name of N.A.A. had been requested at the Netherlands embassy in Tripoli by a man who had submitted a passport photograph remarkably similar to that contained in the passport the applicant had travelled on. Likewise, the applicant had stated that he had sought asylum on the advice of the Moroccan man who had told him that he would not succeed in getting a job and a regular residence permit. Moreover, it was admitted that the applicant’s wife had sought a Benelux visa, and travelled, under her own name. The airline ticket which the applicant had submitted did not correspond to the journey which he had allegedly made from Libya, and the applicant had not been able to offer proof of his military career. It was unlikely that the applicant had been involved in the coup attempt, since it had been betrayed and all the plotters were known to have been arrested.

7. A hearing was held before the Regional Court (arrondissementsrechtbank) of The Hague, sitting in ‘s-Hertogenbosch, on 16 December 1994. The applicant was allowed two weeks to prove that he was A.A., as he claimed, not N.A.A.

8. The Regional Court gave judgment on 13 January 1995 refusing to order the suspension of the applicant’s expulsion. It found that the applicant had not submitted the required proof of his identity. At all events, he had admitted that he had taken the advice of the Moroccan man to seek asylum rather than a regular residence permit.

9. The applicant submitted to the Deputy Minister a letter from the Dutch Council for Refugees (Vluchtelingenwerk) dated 18 May 1995. This letter gives the applicant’s name as F.B., F.A.B. or F.A.K., depending on the transcription from Arabic. It was admitted that the applicant had used an alias. It was stated that he had done so for fear that other speakers of Arabic would betray him to the Libyan secret service. He had neglected to tell his lawyer this, which he now acknowledged had been a mistake.

10. On 15 June 1995 the applicant again applied to the Regional Court for a suspension of his expulsion. He now gave his name as F.A.B.; the interrogating official was to blame for the mistaken mention of the name A.A. in the report of the interview on 31 March 1994. He also submitted various identity documents in the name, variously, of F.A.B. and F.A.K. As translated, these included a card with a passport photograph naming F.A.B. as a deserter with effect from 15 September 1993; an identity card in the name of F.A.K. giving his profession as “manual labourer”; an identity card naming F.A.B. as “a staff officer and a soldier”; an undated official report of the loss of a driving license in the name of F.A.K.; and a marriage certificate recording the marriage of F.A.K. with L.A.H. on 9 May 1990 and the birth of their child on 14 April 1992.

11. On 22 June 1995 the Deputy Minister dismissed the applicant’s objection on the grounds stated in the statement of defence of 8 May 1994. The applicant lodged an appeal with the Regional Court of The Hague.

12. On 21 March 1996 the Regional Court declared the appeal well-founded. It noted the absence, in the decision appealed against, of any reference to the letter of 18 May 1995 (paragraph 9 above), and took the view that the applicant’s account of the circumstances of his flight from Libya was not prima facie lacking in credibility.

13. The Deputy Minister remitted the applicant’s case to the Advisory Board on Matters Concerning Aliens (Adviescommissie voor vreemdelingenzaken), which heard the applicant and his wife on 11 December 1996. The applicant’s wife stated that the applicant had always been an army officer, not a manual labourer. She and her husband had fled to Tunis the day after their home had been raided by the authorities. The papers recently submitted had been forwarded by her father-in-law. The applicant stated that his name had been taken down wrong by the interviewing official, in the absence of an interpreter; the official had told him that it was no longer possible to correct it and that he, the applicant, would be in trouble if an attempt were made to do so. As regards the raid on his home, the applicant had driven past as it was in progress; suspecting that the authorities were waiting to arrest him, he had driven on and gone into hiding. The Advisory Board decided to adjourn its hearing in order for the applicant’s identity to be established.

14. On 19 December 1996 experts of the Royal Military Constabulary (Koninklijke Marechaussee – the police force entrusted with guarding the borders) reported that the passport the applicant had submitted was a forgery, the photograph having been replaced.

15. A letter dated 5 January 1998 states that the applicant was involved in the Werfalah Coup Attempt of October 1992. The letter is signed “Libyan National Party”. It bears an illegible signature without a name.

16. On 18 January 1999 the Advisory Board on Matters Concerning Aliens resumed its hearing in sub-committee. The applicant gave his name as F.A.B. The passport had belonged to the applicant’s cousin A., who looked like the applicant, and who had also applied for the visa. Confronted with the inconsistency of his having allegedly seen the raid on his home while having previously stated that he had been in hiding at the time (paragraph 3 above), the applicant replied that he had driven on in a panic. After the raid he had spent the night in his home from time to time, he did not remember precisely. The applicant’s wife became unwell during the hearing and was unable to give pertinent answers to any questions.

17. On 20 April 1999 the applicant’s wife was granted a residence permit on humanitarian grounds.

18. On 16 May 2000 the applicant was granted asylum in accordance with the so-called “three years policy” (driejarenbeleid), as in effect at the time, pursuant to which a residence title could be granted if a request for a residence permit had not been decided within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications.

19. In March 2003 the entire family applied for Netherlands citizenship.

20. On 20 January 2006 the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”) produced a report specifically on the applicant. It had emerged that he had been appointed imam of a particular mosque, from where he preached jihad (Islamic holy war) and martyrdom and called upon the faithful to resist Western oppression. The autochthonous population of the Netherlands he described as pigs and dogs to be slaughtered. He was stated to show jihadist videos to young Muslims. “Unbelievers (i.e. non-Muslims), the autochthonous population and women” were to be shunned. He refused to speak the Dutch language and opposed integration. He had links to Al Jamaah al-Islamiyah al-Muqatilah, or Libyan Islamic Fighting Group, and jihadists based in the Netherlands including A. (the applicant in the case of A. v. the Netherlands, no. 4900/06, judgment of 20 July 2010).

21. On 3 February 2006 the Minister for Immigration and Integration (Minister voor Immigratie en Integratie – who at this time had taken the place and responsibilities of the Deputy Minister of Justice in matters concerning aliens) announced her intention (voornemen) to impose an exclusion order (ongewenstverklaring) on the applicant. Mention was made of the AIVD report and of inconsistencies found in the applicant’s various statements made in the course of the asylum proceedings.

22. In the meantime, the Labour Inspectorate (Arbeidsinspectie) had identified the applicant as a suspect of running a temporary employment agency that provided work to foreign nationals who did not possess the necessary work permit (tewerkstellingsvergunning) from a telephone shop and internet café. An official police record dated 21 April 2006 mentions forged identity documents but it seems that no further evidence of such dealings was found. However, known fundamentalists had been observed near the applicant’s internet café.

23. The same report contains a record of an interrogation of the applicant on 21 April 2006 on suspicion of being a member of an organisation aiming to commit crimes for terrorist ends and recruiting persons for armed hostilities without royal permission. The applicant reportedly denied these charges: he stated that he had received religious training in Libya and espoused a tolerant form of Islam. Jihad, for him, was spiritual struggle against oneself. Accordingly, rather than inciting to violence, he had warned his congregation not to become involved with radical Islamists whose religious views he condemned. The AIVD information was therefore incorrect; it probably emanated from Islamic militants who had implicated him in order to deflect the unwanted attention of the authorities from themselves. He no longer ran the temporary employment agency, which had been unprofitable.

24. On 3 May 2006 a board of officials of the Ministry for Immigration and Integration held a hearing in the matter of the applicant’s application for Netherlands citizenship. The applicant did not turn up. Later a letter was found in which the applicant waived his right to be heard.

25. On 31 July 2006 the Minister gave a decision withdrawing the applicant’s asylum. She found that the applicant had not put forward any convincing evidence of a nature to contradict the AIVD report. As to whether the applicant’s expulsion to his home country would violate Article 3 of the Convention, the applicant’s failure to turn up for the hearing on 3 May 2006 was mentioned; moreover, the applicant had provided little evidence of the fate which he said awaited him in Libya, the story which he had spun at the time of his arrival in the Netherlands hardly being credible either.

26. The following day, 1 August 2006, the Minister announced her intention to deny the applicant Netherlands citizenship. The reasoning was derived primarily from the AIVD report. In the alternative, it was stated that the applicant had not done enough to integrate into Netherlands society; thus, an interpreter had been needed for a police interview on 14 February 2006 (no record of which has been submitted to the Court), which showed a lack of Dutch language skills. Similarly, he had described the autochthonous population as “pigs” and “dogs” who would be “slaughtered”. It was also held against him that he had not bothered to turn up for the official hearing on 3 May 2006; in so doing he had deprived himself of the opportunity to clarify matters.

27. The same day the Minister issued an exclusion order based on the same grounds. In so far as it related to Article 8 of the Convention, its reasoning included the following:

“In deciding whether or not the person concerned (betrokkene, i.e. the applicant) constitutes a danger to national security it has also been considered whether the exclusion order constitutes a violation of Article 8 of the [Convention]. Article 8 § 1 of the Convention provides that everyone has the right to respect for his private and family life, his home and his correspondence. Pursuant to Article 8 § 2 of the Convention there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

It is considered that in view of what is set out above the exclusion order does not constitute a violation of the right to respect for family life as referred to in Article 8.

Given that the applicant’s exclusion is ordered, he is denied the possibility to visit his family for a short time in the Netherlands (...). That being so, there is – as far as the exclusion order is concerned – an interference with the right referred to above.

The interference is, however, justified in the interest of the protection of national security, an interest mentioned in [Article 8 § 2]. After all, the person concerned constitutes – in view of the individual [AIVD] report of 20 January 2006 referred to above – a danger to national security. In so finding, the following is taken into account.

The applicant states in his statement of points of view (zienswijze) that he has a wife and five children, family members who have been legally resident in the country since 1999. That being so, there is family life between the person concerned, his partner and his children within the framework of Article 8. Neither his wife nor his children have Netherlands nationality.

If the interests at issue are weighed in the balance, it will be found in the instant case that it is reasonable to give greater weight to the general interest, which is served by the order excluding the person concerned, than to the personal interest of the person concerned which is served by the ability to exercise private or family life in this country with his wife and his five children.

In so doing, the so-called ‘guiding principles’ [English in the original] taken from [Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX] have been taken into consideration. These ‘guiding principles’ have to be observed in considering whether a decision interfering with the right to family life is necessary in a democratic society.

Observing these principles, the Minister has reached the conclusion that the interference is justified and does not contravene Article 8 of the Convention. In this connection, the following is considered relevant.

As is apparent from the above-mentioned individual official report by the AIVD of 20 January 2006, it has appeared that the person concerned constitutes a danger to national security. Thus, it is stated – briefly summarised – in this report (among other things) that it has become known to the AIVD from trustworthy sources that the person concerned has, in his sermons, called for resistance against the Western oppressors; that Netherlands nationals are described by him as ‘pigs and dogs’; that he has made pronouncements such as ‘we will slaughter the Dutch’; that he has, in a private setting (in huiselijke kring), shown jihadist videos to young Muslims; that he has encouraged jihad in his sermons; that he has praised martyrdom; and that he is in contact with, and maintains links with, (international) terrorist networks and organisations.

What is stated about the person concerned in the said AIVD report is so serious that the interest of national security must outweigh the interest of the person concerned in maintaining private or family life without interference.

Prompted by the said individual report by the AIVD, the Minister has concluded that the personal behaviour of the person concerned constitutes a present, actual and sufficiently serious threat (een actuele, werkelijke en voldoende ernstige bedreiging), owing to which the person concerned should be denied residence in the Netherlands.

There is no appearance of special circumstances of such a nature that the balancing exercise should lead to a different result in the present case. In this connection, the following is considered relevant.

The Minister’s refusal to allow the person concerned residence in the Netherlands does, however, prevent the continuation of family life (familie- of gezinsleven) between the person concerned, his wife and their five children as it currently exists in this country. However, although the person concerned and his wife currently have an indefinite residence permit on an asylum basis (vergunning tot verblijf asiel), they have never held a residence permit delivered on the basis of genuine (daadwerkelijk) refugee status in the sense of the [1951 United Nations Convention relating to the Status of Refugees, ‘the 1951 Convention’] and they have never had the status of refugee within the meaning of [the 1951] Convention. Even so, the advisory opinion of the Advisory Board on Matters Concerning Aliens of 18 January 1999 [containing the advice] not to admit the applicant and his wife to the Netherlands as refugees but to award him [sic] a residence permit in connection with the so-called three years policy has led to the delivery of unrestricted residence permits to the applicant and his wife. The residence permit ... was eventually transformed into an indefinite residence permit. Since the lapse of time had arisen in the asylum procedure, it was merely administered by us as an indefinite ‘asylum’ residence permit.

The applicant and his wife have – in view of the above – never entered into or been in the possession of a residence permit because they were refugees. It is true, however, ... that an indefinite asylum residence permit may constitute an objective impediment. The person concerned and his wife are thereby prevented from obtaining a Netherlands travel document which would allow them to travel to Libya (their country of origin). Nonetheless, the person concerned, his wife and his (minor) children may – in view of the above findings on refugee status – turn to the authorities of Libya (their country of origin) for a travel document. There is no appearance of any impediment in this respect. ...”

28. The applicant submitted his statement of points of view against the intention to deny him Netherlands citizenship on 14 August 2006. On 31 August 2006 he also lodged an appeal against the withdrawal of asylum, at the same time applying for a stay of expulsion. On 18 September 2006 he lodged an objection against the exclusion order.

29. The applicant submitted the grounds underlying his objection against the exclusion order on 18 or 19 October 2006. He appended some sermons which he had given in 2005, giving his exegesis of the concept of jihad.

30. On 18 October 2006 the applicant submitted the grounds for his appeal against the withdrawal of asylum and his application for a stay of expulsion. These were largely identical to those submitted in response to the exclusion order.

31. On 20 October 2006 the Minister dismissed the applicant’s objection against the refusal of Netherlands citizenship. The main reason was that since the applicant’s asylum status had been withdrawn, and since an exclusion order was in force, he was no longer lawfully resident in the Netherlands. For the remainder, she relied essentially on the AIVD report.

32. On 24 November 2006 counsel for the State (Landsadvocaat) wrote to the Regional Court informing it that the Minister had decided not to expel the applicant pending the outcome of the appeal against the exclusion order. He added that the applicant was not suspected of oppositional activities against the Libyan leadership.

33. Also on 24 November 2006 a hearing before officials of the Ministry for Immigration and Integration took place in the matter of the applicant’s objection against the exclusion order. The applicant continued to insist that he preached a peaceful message, although perhaps some of his sermons might have been misinterpreted. He also claimed to have been filmed taking part in a demonstration in Brussels protesting against a visit by the Libyan leader Colonel Muammer Gaddafi.

34. On 1 December 2006 the applicant lodged an objection against the refusal to grant his entire family citizenship.

35. On 19 December 2006, following a hearing on 5 December, the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Utrecht, decided to order the suspension of the exclusion order given that the applicant’s expulsion was not imminent but the applicant nonetheless committed a criminal act by remaining in the country.

36. The very next day the Minister gave a decision dismissing the applicant’s objection against the exclusion order. This decision was largely based on the AIVD report, whose credibility the applicant had not managed to undermine. Absent proof of the applicant’s participation in the demonstration in Brussels, there was no evidence to suggest that the applicant was wanted by the Libyan authorities, and hence no relevant risk for purposes of Article 3 of the Convention; moreover, although it was true that the applicant had been convicted of no crime, he remained a danger to society in the Netherlands and could be required to return to Libya, exercising his right to respect for his family life in that country.

37. On 27 January 2007 the Regional Court of The Hague, sitting in Utrecht, dismissed the applicant’s appeal against the withdrawal of asylum. It found that the appeal had become devoid of purpose, the exclusion order implying that it was not possible for the applicant to be lawfully resident in the Netherlands anyway.

38. The applicant lodged a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), arguing that the Regional Court had failed to go into his complaints under Articles 3 and 8 of the Convention.

39. The Administrative Jurisdiction Division gave its decision on 9 May 2007. It agreed that the Regional Court had failed to rule on the applicant’s Convention complaints. However, these could be addressed in the proceedings concerning the exclusion order; there was therefore no reason to allow the appeal, which was dismissed as ill-founded.

40. The Regional Court of The Hague, sitting in Utrecht, held a hearing in the matter of the exclusion order on 5 July 2007. It delivered its decision on 22 February 2008, dismissing the applicant’s appeal. Having studied the documents on which the AIVD report was based, the Regional Court found the report credible and dismissed the suggestion that the applicant was at risk in the event of his return to Libya; there was thus no issue under Article 3 of the Convention. As to the applicant’s right to respect for his family life, in so far as it was guaranteed by Article 8, national security carried greater weight.

41. The applicant lodged a further appeal with the Administrative Jurisdiction Division, arguing not only that his removal to Libya would constitute violations of Articles 3 and 8 but also that the failure of the Minister to take cognisance of the information on which the AIVD report was based, and the failure to allow him access to that material, violated Article 13 taken together with Articles 3 and 8 respectively.

42. The Administrative Jurisdiction Division gave its decision on 14 April 2009. It dismissed the applicant’ suggestion that the Minister ought to have taken cognisance of the raw data used by the AIVD to prepare its report, finding it sufficient that the Regional Court had done so, and that it had done so itself. It then found it established in previous judicial decisions that the applicant’s account of his military career and flight from Libya lacked credibility and that moreover the applicant’s brother-in-law appeared able to travel to and from that country with no apparent difficulty. Letters and testimonials purportedly emanating from Libyan opposition organisations gave no specific information as to either the applicant’s actions, nor as to whether the applicant had attracted the active interest of the Libyan authorities. As regards Article 8, the Administrative Jurisdiction Division referred to the AIVD report and the information on which it was based; taking these into account, it found no reason to overturn the decision of the Regional Court. It went on to hold that the Minister had ruled, not without good cause, that the interference with the applicant’s rights was justified.

B. Subsequent events

1. The situation in Libya

43. The regime of Colonel Muammer Gaddafi was overthrown in August 2011. On 20 October 2011 Colonel Gaddafi himself was captured and killed. The National Transitional Council, the internationally recognised interim authority, declared the country liberated three days later. Parliamentary elections were held in July 2012.

2. The applicant’s wife’s travel documents

44. The Government have submitted photocopies of travel documents in the name of the applicant’s wife, Ms L.A.H. All three documents state Ms L.A.H.’s name, her place of birth (a town in Libya) and her date of birth and bear her likeness.

45. The first is a Netherlands travel document in passport form issued under the 1951 Convention on 15 July 2009. It is valid for all countries but one, the sole exception being Libya. The photocopy submitted shows three Brussels Airport passport control stamps: an exit stamp dated 15 October 2011, an entry stamp dated 30 October 2011, and another exit stamp dated 24 December 2011.

46. The second is a Netherlands identity card showing that Ms L.A.H. has been granted indefinite asylum.

47. The third is a Libyan passport, issued on 27 October 2011 in Ms L.A.H.’s place of birth. It is valid until 26 October 2015. It bears stamps in Arabic script dated 29 October 2011, 24 December 2011 and 10 January 2012, at least two of which the Court identifies as Libyan border control stamps.

48. The photographs used for the Netherlands travel document and the Libyan passport appear identical.

C. Relevant domestic and international law and practice

49. The domestic and international law and practice relevant to the case are set out in A. v. the Netherlands, cited above, §§ 67-110.

COMPLAINTS

50. The applicant complained under Article 3 of the Convention that he would be in danger of inhuman and degrading treatment should he be expelled to his country of origin.

He complained under Article 8 of the Convention that the failure of the Minister for Immigration and Integration to examine the information on which the AIVD report was based had deprived him of a procedural safeguard.

He complained under Article 8 of the Convention that his expulsion, if put into effect, would result in a violation of his right to respect for his “family life” with his wife and children.

He complained under Article 13 in conjunction with Articles 3 and 8 of the Convention that the procedures available to him had not amounted to an “effective remedy”.

THE LAW

A. Alleged violation of Article 3 of the Convention

51. The applicant alleged that he ran a real risk of treatment contrary to Article 3 of the Convention in the event of his forced return to Libya. Article 3 of the Convention provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government denied that such was the case.

1. Argument before the Court

(a) The applicant

(i) The applicant’s observations

52. The applicant reiterated the submissions which he had made in the domestic proceedings, namely that he had been an officer in the Libyan army, that he had taken part in an attempted coup d’état against the Libyan leader Colonel Gaddafi and that he remained involved in the activities of Libyan opposition organisations banned in Libya itself. He argued that these allegations had been called into question in the domestic proceedings but never disproved by the authorities.

53. The applicant also pointed to the AIVD reports, which described him as an Islamic fundamentalist who preached violent jihad and had links to Islamic organisations likewise banned in Libya. Although he stopped short of admitting that this description was accurate, he suggested that the mere fact that allegations of such a nature had been made – and which could hardly not have come to the knowledge of the Libyan secret services – increased the danger for him.

54. Finally, he complained that the domestic authorities had failed properly to assess the risk which he would run should he be expelled to his country of origin.

(ii) The applicant’s further observations

55. After the fall of the regime of Colonel Muammer Gaddafi, the applicant was asked to comment on how he considered that his situation was affected.

56. The applicant stated that there were a multitude of militias active in Libya involved in internecine struggle. He feared that some, still sympathising with the Gaddafi regime, might wish to settle old scores whereas others might extort protection money from him. He had not been able to contact all of his family members and did not know with which militia some of them were aligned; he therefore could not trust them either.

(b) The Government

(i) The Government’s observations

57. Already at the time when the application was communicated to them, the Government asked the Court to find that the applicant had not established the reality of the threat facing him. They pointed to, among other things, the uncertainty that had attended the establishment of the applicant’s identity, including the use made of a falsified passport; the uncertainty surrounding the education which the applicant claimed to have received, namely training in a military academy, which claim contrasted with an identity card which stated his occupation as manual worker and religious training enabling him to function as an imam; and inconsistencies in the applicant’s account of the raid on his home and his desertion. They also argued that the applicant had failed to establish his membership of the Libyan political opposition, membership documents such as that presented by the applicant being relatively easy to obtain.

58. The Government also pointed to the applicant’s statement to the interviewing officer that upon his arrival in the Netherlands he had asked a Moroccan man about the prospects of obtaining a job and a residence permit, then followed his advice to lodge an asylum request.

59. Finally, the only action which the applicant claimed to have taken as a member of the Libyan political opposition since entering the Netherlands was participating in a demonstration in Brussels. Not only could the fact of his participation not be verified, but there was nothing to suggest that the Libyan authorities considered him a political opponent for that reason.

(ii) The Government’s further observations

60. The Government too were invited to submit further observations.

61. The Government pointed out that the regime of Colonel Gaddafi was no longer in existence. They considered it unlikely that the applicant’s subversive activities would be held against him by those now running the country.

62. Although some unrest continued, its occurrence was not so extreme that forced return to Libya would constitute a violation of Article 3 of the Convention.

2. The Court’s assessment

(a) Applicable principles

63. In its above-mentioned A. v. the Netherlands judgment, the Court stated the applicable substantive principles as follows:

“141. The 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, and the right to political asylum is not explicitly protected by either the Convention or its Protocols. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if expelled, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to expel the person in question to that country (see, most recent, Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 72, ECHR 2009‑...).

142. In assessing whether there would be a violation of Article 3 if a Contracting State were to expel an individual to another State, the Court will apply the general principles as set out in its settled case-law (see, among other authorities, Saadi v. Italy [GC], no. 37201/06, §§ 124-133, ECHR 2008‑...). In this judgment the Court has reiterated the absolute nature of the prohibition under Article 3, irrespective of the conduct of the person concerned, however undesirable or dangerous this may be. The Court has also reaffirmed the principle that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, and emphasised that ‘the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention’ (see Saadi, cited above, §§ 137-141 and 147 in fine).

143. The Court wishes to stress once more that it is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence and that this makes it all the more important to underline that Article 3 enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 notwithstanding the existence of a public emergency threatening the life of the nation. Even in the most difficult of circumstances, such as the fight against terrorism, and irrespective of the conduct of the person concerned, the Convention prohibits in absolute terms torture and inhuman or degrading treatment and punishment (A. and Others v. the United Kingdom [GC], no. 3455/05, § 126, ECHR 2009‑...).”

64. The Court would however add, for the sake of clarity, that it is, in principle, for an individual who invokes the protection of Article 3 of the Convention to prevent his or her expulsion to show that sufficient grounds exist. It is not for the respondent to disprove factual allegations unsupported by evidence, as the applicant appears to imply (compare, as an example involving the same respondent Party, Mawajedi Shikpohkt and Mahkamat Shole v. the Netherlands (dec), no. 39349/03, 27 January 2005).

(b) Whether sufficient grounds can be found to exist

65. The Court will therefore test the credibility of the applicant’s assertions in the light of the Government’s denials.

66. Like the Government, the Court is struck by inconsistencies in the applicant’s account including the following.

67. Firstly, although the applicant claimed to have been a serving non-commissioned and, later, commissioned officer in the Libyan army, he was unable to give a complete and accurate description of standard infantry weapons. Similarly, the Court notes the applicant’s failure to give the name of the military academy at which he was supposedly educated (paragraph 3 above).

68. Secondly, the Court observes that the applicant stated both that he went into hiding before the raid on his home (paragraph 3 above) and that he witnessed the raid from a car (paragraph 13). The Court is not convinced by the applicant’s explanation (paragraph 16). This discrepancy undermines the credibility of the applicant’s claims to have been involved in an attempted coup d’état, as indeed does the ease with which he and his wife apparently left Libya.

69. Thirdly, the applicant has produced identity documents giving his occupation variously as army officer and manual labourer. The Court finds it difficult to accept both as accurate simultaneously.

70. Fourthly, the Court cannot ignore the applicant’s admission, when interviewed on 31 March 1994, that he had taken advice to apply for asylum rather than apply for a regular residence permit and look for a job (paragraph 3 above). This does not suggest that the applicant was an army officer with three years’ education at a military academy who fled his country for political reasons.

71. Fifthly, the Court is not convinced that the applicant was ever active against the Libyan regime after his arrival in the Netherlands. The statement purportedly given by a Libyan opposition organisation (paragraph 15 above) cannot, in the Court’s view, be considered conclusive. Be that as it may, the applicant has produced not a shred of evidence to suggest that the Gaddafi regime were aware of his political activities (if any) or even his existence, let alone that they were likely to do him harm. In this the present case differs from that of A. v. the Netherlands, no. 4900/06, 20 July 2010.

72. Sixthly, even assuming that there is any substance in the applicant’s claims to have been a militant opponent of Colonel Gaddafi’s regime, the Court agrees with the Government that it can no longer be a threat to him.

73. In sum, the applicant has failed to satisfy the Court that he has anything to fear from either the present Libyan government or its opponents.

74. It follows that the applicant’s complaint under Article 3 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. Alleged violations of Article 8 of the Convention

75. The applicant relied on Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his ... private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. Private life

(a) The applicant

76. The applicant argued that there had been an interference with his right to respect for his “private life” in that – as was apparent from the AIVD report – the exclusion order appeared based in part on statements which he had supposedly made in private. He complained that the proceedings leading up to the exclusion order had been deficient through his having been denied even restricted access to the information on which the report was based, as a result of which he had not been able to challenge them before the administrative tribunals.

(b) The Government

77. The Government argued that the applicant did not expand on his complaint under Article 8 other than to “highlight procedural points”. In the alternative, they argued that the information made available to the applicant had been quite sufficient for him to challenge the decision complained of, and as extensive as was consistent with national security.

(c) The Court’s assessment

78. The Court finds it open to question whether the expression “private life” properly applies to such matters as showing videos to an unknown number of young people with a view to disseminating an ideology and recruiting new members to a cause (paragraph 27 above; compare Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997‑I). However, for the sake of argument, the Court will proceed on the assumption that there has been an “interference” with the applicant’s private life so as to bring the matter within the scope of Article 8 of the Convention.

79. The Court reiterates its settled case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, for example, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V, and Olivieira v. the Netherlands, no. 33129/96, § 47, ECHR 2002‑IV; see also, as a more recent authority, Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008).

80. The applicant’s complaint is not that the law applied in his case was insufficiently accessible or foreseeable. Indeed, it is not alleged that the applicant lacked the benefit of substantive and procedural legal guarantees (as to which, see A. v. the Netherlands, cited above, §§ 67-89). Nor is it the applicant’s point that the AIVD itself was in some way remiss or the use of its powers insufficiently circumscribed (compare and contrast Uitgeversmaatschappij De Telegraaf B.V. and Others v. the Netherlands (dec.), no. 39315/06, 18 May 2010). Rather, the applicant’s argument relates to the detail of the procedure followed in the administrative courts.

81. The Court reiterates that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive’s assertion that national security is at stake. While the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Al-Nashif v. Bulgaria, no. 50963/99, §§ 123-124, 20 June 2002; Lupsa v. Romania, no. 10337/04, §§ 33-34, ECHR 2006-VII; Liu and Liu v. Russia, no. 42086/05, § 59, 6 December 2007; and Nolan and K. v. Russia, no. 2512/04, § 71, 12 February 2009).

82. Turning to the facts now before it, the Court notes that the AIVD report was the object of extensive adversarial debate in the domestic proceedings, including before first-instance and appellate tribunals which themselves took cognisance of the information on which that report was based (see paragraphs 40 and 42 above). In this the present case differs from those cited in the preceding paragraph. The Court finds it understandable that the applicant should not have been privy to all of the facts underlying the report, given the potential implications for national security. At all events, nothing prevented the applicant from stating facts of his own, supported by evidence as necessary, with which to challenge the findings contained in the report; in fact, he did attempt to do so (see paragraph 23 above), even though he failed to convince the domestic authorities.

83. Having regard to the case as a whole, which include among other things the applicant’s failure to give a satisfactory account of the circumstances of his departure from Libya, the Court takes the view that the domestic authorities, administrative and judicial, could reasonably consider that the applicant had failed to make out his case. No arbitrariness can be established.

84. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Family life

85. The applicant complained that his expulsion from the Netherlands, if put into effect, would separate him from his wife and children. His children, in particular, had grown up in the Netherlands and were well integrated in Netherlands society, speaking only basic Arabic.

86. The Government argued that the applicant and his family could continue their family life in Libya or elsewhere.

87. The Court notes the absence of detailed information about the levels of integration of the applicant’s children – only a general statement is made that they are “completely integrated in modern [Netherlands] society and school life” – or even their ages. The applicant has not satisfied the Court that their knowledge of Arabic is insufficient for them to communicate with others in that language. He has neither given reasons why he cannot take his family with him, nor even stated that they would be unwilling or unable to follow him, nor yet that it would be impossible or even inconvenient for him to maintain his family life at an adequate level in some other way.

88. At all events, it is apparent that the applicant’s wife and children still have Libyan nationality. No reasons have been given why they could not travel to Libya; in fact, it has been proven that the applicant’s wife has actually visited that country and returned from there at least twice in recent months (see paragraphs 45-47 above). The applicant has therefore not satisfied the Court that separation from his wife and family would be an inevitable or even a probable consequence of his expulsion (compare Boultif v. Switzerland, no. 54273/00, § 48, ECHR 2001‑IX).

89. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Alleged violation of Article 13 of the Convention in conjunction with Articles 3 and 8

90. The applicant complains under Article 13 of the Convention, in conjunction with both Article 3 and Article 8 of the Convention, that he did not have access to an effective remedy against the decisions of the domestic authorities. The substance of his complaint under this Article concerns essentially the lack of access to the AIVD’s files. Article 13 of the Convention provides as follows:

“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.”

91. The Court will confine itself to noting that, according to its standing case-law, Article 13 requires a remedy in domestic law to be available in respect only of such grievances as are “arguable” in terms of the Convention (see, among many other authorities, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131; more recently, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 58, ECHR 2000‑IV; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003‑VIII; Taheri Kandomabadi v. the Netherlands (dec.), nos. 6276/03 and 6122/04, 29 June 2004; and El Morabit v. the Netherlands (dec.), no. 46897/07, 18 May 2010). In view of its findings above, the Court does not consider that an arguable claim has been established under Articles 3 and 8 of the Convention or any other Article.

92. Consequently this complaint too is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and of the Convention.

D. Rule 39 of the Rules of Court

93. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena TsirliJosep Casadevall
Deputy RegistrarPresident

Full & Egal Universal Law Academy