EHRM, 29-09-2009, nr. 19221/08

At the time of the events complained of, relevant provisions of the Code of Criminal Procedure provided as follows:

Article 119 of the Constitution for the Kingdom of the Netherlands Constitution (Grondwet voor het Koninkrijk der Nederlanden) provides as follows:

No such prosecution has ever been brought.

The applicants argue that the prohibition of torture is a rule of ius cogens under international humanitarian law. From this it follows, in their argument, that any person can claim an interest and hence standing to bring proceedings in the event that treatment amounting to ‘torture’ is threatened or such a threat actually materialises.

As to whether all applicants can be regarded as ‘victims’ within the meaning of Article 34 of the Convention, the Court has held that this concept must be interpreted autonomously and independently of domestic concepts such as those concerning the interest in taking proceedings or the capacity to do so. In the Court's opinion, there must be a sufficiently direct link between the applicant and the damage which he or she claims to have sustained as a result of the alleged violation for an applicant to be able to claim that he or she is the victim of a violation of one or more of the rights and freedoms recognised by the Convention and its Protocols (see, among other authorities, Association des amis de Saint-Raphaël et de Fréjus and Others v. France (dec.), no. 45053/98, 29 February 2000, in respect of the applicant association; and Smits, Kleyn, Mettler Toledo B.V. et al., Raymakers, Vereniging Landelijk Overleg Betuweroute and Van Helden v. the Netherlands (dec.), nos. 39032/97, 39343/98, 39651/98, 43147/98, 46664/99 and 61707/00, 3 May 2001, in respect of the applicant association Vereniging Landelijk Overleg Betuweroute).

Of the forty-two applicants, only five (Mr Muhammed Simsek, Mr Chafik Chnachi, Mr Mustafa Moujahid, Mr Mustafa el Boukhari and Mr Ahmed Issa Al-jeballi) were actually detained in the detention centre at the time of the fire and underwent the events complained of.

Two other applicants claim kinship with detainees killed in the fire. They are Ms Nevin Igli and Mr Erol Sahin, whose status as applicants the Court will consider below.

The remaining thirty-five applicants claim standing not in their own right but as protectors of the interests of the actual victims, both living and dead. However, they were not personally affected by the facts on which their complaint under Article 3 is based. Consequently they cannot claim to be ‘victims’ of a violation of this provision in the sense of Article 34 of the Convention.

It follows that in so far as the application is lodged by those thirty-five applicants it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

The final decision in the case was given by the Supreme Court on 19 October 2007.

Two of the applicants claim kinship with detainees killed in the fire. They are the second applicant, Ms Nevin Igli, sister-in-law of the late Mr Mehmet Ava, and the third applicant, Mr Erol Sahin, cousin of the late Mr Kemal Sahin.

As has been accepted in numerous cases, and as has been stated in Fairfield v. United Kingdom (dec.), no. 24790/04, ECHR 2005-VI, ‘individuals who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention may apply as applicants in their own right’.

Mr Erol Sahin was not one of the thirty applicants who took part in the domestic proceedings. The Court is however prepared in the circumstances to proceed on the assumption that Ms Nevin Igli and Mr Erol Sahin both have the requisite standing before the Court.

The complaint, as lodged within the six-month time-limit by the two applicants with standing before the Court, is that the two Ministers were not prosecuted in connection with the events of the night of 26 to 27 October 2005 as they affected the late Messrs Mehmet Ava and Kemal Sahin.

As the Court understands the application, the applicants hold the two Ministers responsible for violations of international law. They rely heavily on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which contains an obligation to make torture and other cruel, inhuman or degrading treatment or punishment committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity crimes under domestic law (Articles 4 and 16).

The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State (or where a surviving relative of an alleged victim of such treatment who has standing as an applicant before the Court does so), that provision, read in conjunction with the State's general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention’, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible (see, for example, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

Let it be assumed that the applicants have presented a case that would be credible under the substantive head of Article 3. It does not follow that the respondent Party was for that reason alone under an obligation to prosecute the persons whom the applicants wished to see held to account. More generally, if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 3 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case (see, mutatis mutandis, Branko Tomašić and Others v. Croatia, no. 46598/06, § 64, ECHR 2009-…, with further references).

Turning to the actual circumstances, the Court further observes that there was an investigation by an independent committee, the Investigation Committee for Safety Issues. Its report was made public less than eleven months after the fire. The report, which was extensive and detailed and highly critical and which the Court is prepared to accept as reliable, identified specifically the Government institutions which it blamed for the failure to secure the safety of the detainees and for any inadequacy in the care given to them afterwards (i.e. the Ministry of Justice; the Ministry of Housing Spatial Planning and the Environment; and the Municipality of Haarlemmermeer). In fact, it led to the resignation of the two ministers responsible for the safety and care of the detainees on grounds of political responsibility.

The Court takes the view that, in so far as they were addressed directly to members of the Government at ministerial level, the procedural requirements of Article 3 were satisfied in this case. There is nothing in the application to suggest that the Minister of Justice — one of those who resigned over the matter — and the Minister for Immigration and Integration personally disregarded their duties to the point of criminal responsibility warranting prosecution.

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.

For these reasons, the Court by a majority

Declares the application inadmissible.

Santiago Quesada

Registrar

Josep Casadevall

President

Application no. 19221/08

by Jacobus Pieter VAN MELLE and Others

against the Netherlands