EHRM, 20-07-2010, nr. 4900/06

The applicant entered the Netherlands on 25 November 1997 and applied for asylum. In the course of interviews held with immigration officials on 25 November 1997 and 16 December 1997, he stated that he feared persecution in Libya for his involvement since 1988 in a clandestine, nameless opposition group and its activities which consisted in holding regular meetings, distributing pamphlets and informing people about the Libyan regime by inter alia distributing publications by the Libyan resistance abroad. This group had begun having problems with the Libyan authorities as from late 1992 or early 1993 when a first group member was arrested. More arrests of group members followed and when virtually all his friends in this group had been arrested and detained, the applicant decided to flee Libya which he actually did by the end of 1994 without, however, having himself encountered any problems with the Libyan authorities. He had left the country via an official Libyan border crossing-point and holding his own, authentic passport. After his departure for Saudi Arabia, the applicant's younger brother and brother-in-law were arrested. After a brief illegal stay in Saudi Arabia where he lost his passport, the applicant travelled on to Yemen where he stayed for about eight months, mostly in an aliens' detention centre. Attempts by the Libyan consul in Yemen to have him expelled to Libya failed due to the applicant's refusal to cooperate. In August 1996, after having obtained a forged Libyan passport and released from detention in Yemen, the applicant travelled to Sudan. After the Libyan authorities had sent officials to Sudan in order to trace Libyans in Sudan who were listed as opponents of the Libyan regime and to seek the transfer of these persons to Libya, the applicant no longer felt safe in Sudan and travelled to the Netherlands.

On 27 February 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's asylum request. The Deputy Minister did not find it established that the applicant had attracted the negative attention of the Libyan authorities. His alleged membership of a nameless opposition group had remained unsubstantiated and he had failed to give clear information about the group's aims and manner in which it sought to realise these aims. Even assuming that the applicant was associated with this group, he had never held any function of significance within this group and had never encountered any personal problems with the Libyan authorities. On this point, the Deputy Minister noted that about 10–15 persons belonging to that group had allegedly been arrested and detained in 1993 whilst the applicant had stayed in Libya until the end of 1994 without having encountered any problem. Moreover, he had left Libya holding an authentic passport in his own name. The Deputy Minister therefore concluded that, even assuming that the applicant had been involved in this opposition group, this had not become known to the Libyan authorities. The Deputy Minister further did not find it established that the applicant, if expelled to Libya, would be exposed to a real and personal risk of being subjected to treatment in breach of Article 3 of the Convention. On 3 March 1998 the applicant filed an objection (bezwaar) against that decision with the Deputy Minister.

As the applicant's objection was denied suspensive effect as regards his expulsion from the Netherlands, he applied on 7 April 1998 for a stay of expulsion by way of a provisional measure (voorlopige voorziening) with the Regional Court (rechtbank) of The Hague sitting in 's‑Hertogenbosch.

In support of his objection, the applicant submitted two statements issued by ‘The National Front for the Salvation of Libya’ (‘NFSL’) dated 1 February 1998 and 15 June 1998, respectively. According to these statements, the applicant was a sympathiser of this organisation and had disseminated NFSL materials in Libya.

On 5 October 1998 the Deputy Minister dismissed the applicant's objection. On 22 October 1998 the applicant filed an appeal against this decision with the Regional Court of The Hague.

On 9 November 1998 the President of the Regional Court of The Hague sitting in 's‑Hertogenbosch granted the applicant's request for a provisional measure and ordered the stay of the applicant's removal until four weeks after the determination of the applicant's objection.

On 30 December 1998, the applicant was informed that — having noted the ruling of 9 November 1998 — the Deputy Minister had withdrawn the decision of 5 October 1998 and would take a fresh decision. Consequently, the applicant withdrew his appeal of 22 October 1998.

On 15 June 1999, the Netherlands Ministry of Foreign Affairs started an investigation into the NFSL and the reliability of documents issued by this organisation. The results of this investigation were set out in an official report (ambtsbericht), issued by the Ministry of Foreign Affairs on 20 August 1999.

In a fresh decision taken on 30 December 1999, the Deputy Minister of Justice again dismissed the applicant's objection of 3 March 1998, finding that the NFSL statements could not serve in substantiation of the applicant's account. The Deputy Minister did not find it established that the applicant had attracted the negative attention of the Libyan authorities or that he had found himself in an acute flight situation. The Deputy Minister further found no reasons for accepting the applicant's argument that his expulsion to Libya would be in violation of his rights under Article 3 of the Convention.

On 10 February 2000, the applicant filed an appeal against this decision with the Regional Court of The Hague as well as a request for a provisional measure.

By letter of 16 April 2003, the Minister of Immigration and Integration (Minister voor Immigratie en Integratie; the successor to the Deputy Minister of Justice) withdrew the decision of 30 December 1999. As the applicant was allowed — pursuant to the ruling of 9 November 1998 — to remain in the Netherlands pending the proceedings on his objection, he withdrew his appeal and request for a provisional measure filed on 10 February 2000.

On 16 June 2003, after the applicant had been heard on his objection before an official commission (ambtelijke commissie), the Minister rejected the applicant's objection of 3 March 1998. In this decision, the Minister further decided not to grant the applicant ex officio a residence title on account of the duration of the still pending proceedings on his asylum request (tijdsverloop in de asielprocedure).

On 17 June 2003, the applicant filed an appeal with the Regional Court of The Hague against the rejection of his objection of 3 March 1998 as well as a request for a provisional measure.

On the same date, the applicant filed an objection with the Minister against the decision of 17 June 2003 not to grant him a residence title on account of the length of the determination of his asylum request, as well as a request with the Regional Court for a provisional measure.

On 10 July 2003, the Minister informed the applicant that he would not be expelled pending the decision on the provisional measure request he had filed in the context of his asylum application.

On 17 July 2003, the Minister withdrew the decision of 16 June 2003 on the applicant's asylum request. Consequently, the President of the Regional Court of The Hague sitting in Middelburg declared inadmissible the applicant's provisional measure request filed in the context of these asylum proceedings and, pursuant to the ruling of 9 November 1998, the applicant was allowed to remain in the Netherlands pending the proceedings on his objection of 3 March 1998.

On 28 January 2004, after the applicant had been heard on 8 December 2003 before an official commission and had submitted a statement dated 25 November 2003 from the Geneva-based Libyan League for Human Rights (‘LLHR’), according to which the applicant was a member of this organisation and for that reason would be persecuted and imprisoned, possibly executed, if he were to be expelled to Libya, the Minister rejected the applicant's objections of 3 March 1998 and 17 June 2003.

On 29 November 2004 the Regional Court of The Hague sitting in Middelburg accepted the two separate appeals filed by the applicant and remitted the case to the Minister for fresh decisions.

On 17 May 2005, the applicant was heard before an official commission on his objections of 3 March 1998 and 17 June 2003. In the course of this hearing, the applicant was informed of the Minister's intention (voornemen) to impose an exclusion order (ongewenstverklaring) on him, as he was considered to pose a threat to national security (see below §§ 40 and 53). At his lawyer's advice, the applicant did not wish to react to that intention during this hearing.

In a fresh decision given on 3 November 2005, the Minister again rejected the applicant's objections of 3 March 1998 and 17 June 2003. Referring to an individual official report on the applicant drawn up on 9 February 2005 by the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; ‘AIVD’), the Minister noted that the AIVD considered the applicant to constitute a danger to national security (see below § 40). Noting that, after having been granted access to the underlying materials of the AIVD individual official report of 9 February 2005, the Immigration and Naturalisation Department (Immigratie- en Naturalisatiedienst) of the Ministry of Justice had concluded on 6 October 2005 that this report, both as regards its content and procedure, had been drawn up in a careful manner and that it provided insight in a logical, transparent manner, the Minister accepted the correctness of the individual official report of 9 February 2005. Consequently, in accordance with the case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), the finding that the applicant represented a danger to national security was, in itself, a sufficient ground for rejecting his asylum request and to deny him a residence permit on account of the duration of the proceedings on his asylum request. Moreover, the Minister found no indications in the case that in Libya the applicant would have to fear persecution within the meaning of the 1951 Convention Relating to the Status of Refugees. Following an extensive examination of the applicant's account, the Minister did not find it established that the applicant had attracted the negative attention of the Libyan authorities on grounds of his alleged involvement with the NFSL or his involvement with and marginal activities for the LLHR in the Netherlands. The Minister further did not find it established that — on account of the criminal proceedings taken against the applicant in the Netherlands (see below §§ 41–45) or his very marginal opposition activities — the applicant would be exposed in Libya to a real risk of being subjected to treatment prohibited under Article 3 of the Convention.

On 8 November 2005, the applicant filed two separate appeals (one against the refusal to grant him asylum and the other one against the refusal to grant him a residence title on account of the duration of the still pending asylum proceedings) and, having been informed that he was not allowed to await the outcome of those appeals in the Netherlands, also two separate requests for a provisional measure with the Regional Court of The Hague. In addition, as the Minister had decided on 4 November 2005 to impose an exclusion order (ongewenstverklaring) on the applicant against which the applicant had filed an objection (see below § 56), he also applied for a provisional measure allowing him to remain in the Netherlands pending the determination of this objection by the Minister.

In the proceedings on these appeals and requests for a provisional measure and with the parties' consent, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle was granted access to the materials underlying the AIVD individual official report of 9 February 2005 without these materials being disclosed to the applicant.

On 1 February 2006, the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle rejected the applicant's three requests for a provisional measure as well as his two appeals on the merits against the Deputy Minister's decision of 3 November 2005. After having verified personally and accepted that the conclusions drawn in the AIVD official report of 9 February 2005 were sufficiently supported by the underlying materials, the provisional-measures judge accepted the Minister's conclusion that the applicant posed a threat to the national security and could for that reason be denied a Netherlands residence title, either for asylum or on account of the duration of the proceedings on his asylum request.

The provisional-measures judge further accepted the reasons given by the Minister for concluding that it had not been established that the applicant, if expelled to Libya, would be exposed to a risk of being subjected to treatment in breach of Article 3 of the Convention on account of his alleged involvement with the NFSL or his involvement with and activities for the LLHR in the Netherlands. Further noting that, when the applicant was presented at the Libyan mission for the purposes of obtaining travel documents (see below § 35), the Netherlands authorities had only provided this mission with extremely neutral information about him, the provisional-measures judge also did not find it established that the applicant would be exposed to such a risk in Libya for being an expelled unsuccessful asylum seeker.

As to the applicant's further argument that, given the publicity attracted by the criminal proceedings taken against him before the Rotterdam Regional Court (see below §§ 43–45), the Libyan authorities had become aware of the nature of the suspicions having arisen against him in the Netherlands and that he would also for that reason risk treatment contrary to Article 3 of the Convention in Libya, the provisional-measures judge held, referring to the general principles under Article 3 of the Convention as defined by the Court in its judgments in the cases of Vilvarajah and Others v. the United Kingdom, (judgment of 30 October 1991, Series A no. 215) and Venkadajalasarma v. the Netherlands, (no. 58510/00, 17 February 2004), that also this had not been established. No information about the applicant's trial had been given to the Libyan mission when the applicant was presented. Even assuming that the Libyan authorities would have become aware of these criminal proceedings in another manner, this was in itself not sufficient for accepting as plausible that the applicant would thus risk treatment contrary to Article 3 in Libya. Also the applicant's reliance in this context on documents of a general nature about the general attitude of the Libyan authorities was insufficient for finding this risk established. The provisional-measures judge found that the applicant had not submitted, let alone demonstrated, facts or circumstances relating to him personally leading to the conclusion that he, if expelled to Libya, would risk such treatment, and that in this respect he had only made a mere reference to the suspicions arisen against him, the ensuing criminal proceedings and speculated about the possible consequences thereof upon his return to Libya. According to the provisional-measures judge is was, however, not for the Minister to demonstrate that the alleged risk actually did not exist.

As regards the applicant's request for a provisional measure in connection with his objection against the decision to impose an exclusion order on him, the provisional-measures judge acknowledged that it was difficult for the applicant to furnish proof and for the Minister to offer relief in this respect. However, as the provisional-measures judge himself had been given access to the materials underlying the AIVD individual official report on the applicant of 9 February 2005, there was an extra guarantee for the due care with which the conclusions made in this report were drawn and formulated. The provisional-measures judge accepted that these underlying materials could carry the conclusions drawn in the report of 9 February 2005 and that therefore the Minister could impose an exclusion order on the applicant on the basis of that report. In so far as the applicant relied on Article 3 of the Convention, the provisional-measures judge reiterated his finding that the applicant had not demonstrated that he, if expelled to Libya, would be exposed to a risk of treatment prohibited by Article 3 of the Convention. Pursuant to article 117 § 2 of the Aliens Act 1965 (Vreemdelingenwet), no further appeal lay against this ruling of the provisional-measures judge.

On 19 May 2003, the applicant was placed in aliens' detention for removal purposes. On 17 June 2003, following a hearing held on 27 May 2003, the Regional Court of The Hague dismissed the applicant's appeal against the decision to place him in aliens' detention and his compensation claim. On 8 August 2003, the Administrative Jurisdiction Division accepted the applicant's subsequent appeal. Disagreeing with the Regional Court of The Hague, it held that the applicant had lawfully stayed in the Netherlands until 16 June 2003 when in the asylum proceedings the Minister had rejected the applicant's objection of 3 March 1998 (see above § 15). Accordingly, it quashed the ruling of 17 June 2003, ordered the lifting of the detention measure, remitted the case to the Regional Court for a determination of the applicant's compensation claim and issued an order for costs against the State.

On 8 November 2005, after having been notified of the decision to impose an exclusion order on him (see below § 56), the applicant was again placed in aliens' detention for removal purposes. On 9 November 2005, the Brabant Zuid-Oost Aliens Police Department (Vreemdelingenpolitie) informed the Libyan mission in the Netherlands of this placement in aliens' detention and the applicant's name. As he did not hold any travel or other identity documents, the Aliens Police Department wished to make an appointment for presenting the applicant at the Libyan mission for the purposes of obtaining travel documents. On 10 November 2005, the applicant refused to cooperate in a presentation by telephone, as he was not allowed a prior consultation with his lawyer. Following a written protest by his lawyer, the State Advocate (Landsadvocaat) informed the applicant's lawyer by letter of 11 November 2005 that no further contacts with the Libyan mission would be made by the Netherlands immigration authorities or any other administration for which the Minister for Immigration and Integration was responsible until the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle had given a ruling (see above §§ 29–33).

On 23 November 2005, following a hearing held on 16 November 2005, the Regional Court of The Hague sitting in Zutphen rejected the applicant's appeal against the decision to place him in aliens' detention and his pertaining request for compensation.

On 13 March 2006, following a hearing held on 7 March 2006, the Regional Court of The Hague sitting in Almelo accepted the applicant's appeal against his continued placement in aliens' detention. It found that the Minister had failed to demonstrate that, despite the interim measure issued by the European Court of Human Rights on 2 February 2006, there were reasonable prospects for the applicant's expulsion within a reasonable delay. Accordingly, it ordered the applicant's immediate release from aliens' detention. The applicant was released the same day.

On 22 April 2002, the Netherlands National Security Service (Binnenlandse Veiligheidsdienst — ‘BVD’) sent an official report to the national public prosecutor responsible for combating terrorism (landelijk officier van justitie terrorismebestrijding), part of which reads as follows:

On 29 May 2002, pursuant to the 2002 Intelligence and Security Services Act (Wet op de inlichtingen- en veiligheidsdiensten), the BVD was succeeded by the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst — ‘AIVD’).

On 27 August 2002, the Acting Head of the AIVD sent a further official report to the national public prosecutor responsible for combating terrorism. This report reads in its relevant part:

On 9 February 2005, the AIVD drew up an individual official report on the applicant, according to which he was classified as a danger to national security. It had become known to the AIVD that the applicant was playing a prominent role in a jihad recruitment network active in the Netherlands which, in the opinion of the AIVD, constituted a threat to national security. The AIVD had further learned that the applicant had been a mujahidin, and that he was active as motivator of jihad fighters, as facilitator of jihad journeys and as jihad recruiter.

On the basis of the BVD official report of 22 April 2002 (see above § 37) and the AIVD official report of 27 August 2002 (see above § 39) as transmitted by the national public prosecutor responsible for combating terrorism to the Public Prosecution Service (Openbaar Ministerie), two criminal investigations were opened. These two investigations were later joined. In the course of this investigation various suspects were arrested and various premises searched where these suspect were living or staying. In the course of these searches a large quantity of books, documents and audio/audiovisual materials were found and seized.

The applicant was arrested on 30 August 2002 and detained on remand on suspicion of belonging to a criminal organisation with the alleged aim of prejudicing the Netherlands State by providing assistance to the enemy conducting a holy war (jihad) against — amongst others — the Netherlands; and which organisation was further involved in drug-trafficking, forgery of (identity) documents, using false (identity) documents, human trafficking and possession of illegal fire arms. These suspicions were based on the content of various intelligence reports drawn up by the BVD and its successor the AIVD.

The applicant and eleven co-suspects were subsequently formally charged and summoned to appear before the Rotterdam Regional Court in order to stand trial. The ‘Rotterdam jihad trial’ proceedings attracted considerable media attention and a photograph of the applicant appeared in various printed media. In a number of publications, the applicant's name and nationality were mentioned.

In its judgment of 5 June 2003, the Rotterdam Regional Court acquitted the applicant and his co-accused of all charges, finding that these had not been legally and convincingly substantiated. The Rotterdam Regional Court held that the BVD/AIVD official reports submitted by the prosecution could not be used in evidence, as the Head and Deputy Head of the AIVD — who had been examined by the investigation judge as well as before the Regional Court — and the national public prosecutor responsible for combating terrorism had refused to give evidence about the origins of the information set out in these official reports, invoking their obligation to observe secrecy under the 2002 Intelligence and Security Services Act whereas, in accordance with a decision of 2 May 2003, the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) and the Minister of Justice (Minister van Justitie) had not released them from that obligation in the event of their being called as witnesses in the criminal proceedings in issue. As a result, the defence had not been given the opportunity to verify in an effective manner the origins and correctness of the information set out in these official reports. The Regional Court considered that there was no basis in law for taking another approach, to the effect that the strictness of evidentiary rules would depend on the seriousness of the offence of which a person was suspected. Consequently, although it acknowledged that the obligation of secrecy at issue was certainly justified in cases concerning national security and found that the public prosecutor had not unlawfully used the material supplied by the BVD/AIVD in the determination of the question whether there was a serious suspicion of an offence and in the decision to arrest the applicant, the Regional Court concluded that these BVD/AIVD reports could not be used in evidence against the applicant. The Regional Court did allow in evidence telephone conversations intercepted by the BVD/AIVD as the defence had been given the opportunity to verify their content.

The prosecution initially lodged an appeal against this judgment but withdrew it on 6 September 2005, before the trial proceedings on appeal had commenced. According to a press release issued on 6 September 2005 by the Public Prosecution Service, this decision was taken in view of new legislative developments, namely the Act on Terrorist Crimes (Wet Terroristische Misdrijven) — rendering inter alia recruitment for [Islamic] armed struggle a criminal offence — having already entered into force on 10 August 2004 but without retroactive effect, and the advanced stage of adoption by Parliament of the Bill on the Protected Witnesses Act (Wetsvoorstel voor de Wet Afgeschermde Getuigen) providing for the possibility of using official reports of the AIVD in evidence.

On 26 July 2005 and under article 47 of the Intelligence and Security Services Act 2002 (Wet op de inlichtingen- en veiligheidsdiensten 2002), the applicant requested access to the materials underlying the conclusions set out in the AIVD individual official report of 9 February 2005 (see above § 40).

On 27 July 2005, the Minister of the Interior and Kingdom Relations informed the applicant that his request would be taken into consideration as soon as he had provided the Minister with a legible copy of a valid identification document and that following receipt of this document, his request would be determined within three months at the utmost. Failure to do so would entail that his request would not be taken into consideration. The applicant complied with this request on 9 August 2005 by submitting a copy of his Netherlands aliens' identity card (‘W-document’), the validity of which, however, had expired on 20 November 2004.

By letter of 1 September 2005, the Minister informed the applicant that his request for access would not be considered as he had failed to submit a valid identity document, as required pursuant to article 47 § 3 of the Intelligence and Security Services Act 2002 and the pertaining Explanatory Memorandum.

On 11 October 2005, the applicant filed a fresh request with the Minister for access to the materials underlying the conclusions set out in the AIVD individual official report of 9 February 2005 and, on the same day, filed an objection against the Minister's decision of 1 September 2005 in which he argued that it could not be derived from the Explanatory Memorandum to the Intelligence and Security Services Act 2002 that for a proper determination of the identity of a petitioner only a valid identity document could be used. The applicant attached a copy of his valid ‘W-document’ for the purposes of a reconsideration of the decision in the objection phase.

On 20 December 2005, following a hearing held on 16 November 2005, the Minister accepted the objection now the applicant had submitted a copy of his valid ‘W-document’ and decided to take his request for access into consideration. As to the applicant's fresh request for access, the Minister referred to his decision on the merits of the applicant's request.

In a new decision taken on the applicant's access request on 20 December 2005, the Minister held that, pursuant to article 53 § 1, article 5§ 1 (b) in conjunction with article 15 opening words under (b), and Chapter 4 of the Intelligence and Security Services Act 2002, no information could be provided about the AIVD's current level of knowledge, its sources and its working methods. Consequently, the Minister rejected the applicant's request in so far as it concerned a request for access to current data. As the official report at issue concerned Islamic terrorism which was a topical subject within the meaning of article 53 § 1 (b) of the Intelligence and Security Services Act 2002, national security interests opposed providing further information. The Minister further stated that no outdated data on the applicant had been found in the archives of the AIVD and its predecessor the BVD.

On 30 January 2006, the applicant filed an objection with the Minister against the decision of 20 December 2005. No further information about these proceedings has been submitted.

On 17 May 2005 the Minister of Immigration and Integration informed the applicant of the intention (voornemen) to impose an exclusion order on him, as he was considered to pose a threat to national security, which conclusion was based on an individual official report drawn up on the applicant by the AIVD on 9 February 2005 (see above § 40) and which had been communicated to him on 11 April 2005.

On 23 June 2005 and 5 August 2005, the applicant filed written comments on the intention with the Minister. He contested that he posed a threat to national security and argued inter alia that such an exclusion order would be in violation of his rights under Article 3 of the Convention in that his expulsion to Libya would expose him to a real risk of treatment contrary to this Convention provision.

On 6 October 2005, after having been given access to the underlying materials of the AIVD individual official report of 9 February 2005, the Immigration and Naturalisation Department of the Ministry of Justice concluded that this report, both as regards its content and procedure, had been drawn up in a careful manner and that it provided insight in a logical, transparent manner.

On 4 November 2005, the Minister of Immigration and Integration decided to impose an exclusion order on the applicant, rejecting the applicant's arguments to the effect that this was contrary to his rights under Article 3 of the Convention. This decision was notified to the applicant on 8 November 2005. On the same day, the applicant filed an objection against this decision with the Minister and, as he was not allowed to await the outcome of his objection in the Netherlands, also a request for a provisional measure with the Regional Court of The Hague.

On 1 February 2006, following a hearing held on 6 December 2005, the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle rejected the applicant's request for a provisional measure (see above §§ 30 and 33).

The Minister rejected the applicant's objection against this decision on 7 April 2006. On 12 April 2006, the applicant filed an appeal against this decision as well as a fresh request for a provisional measure with the Regional Court of The Hague.

On 30 August 2006, the Regional Court of The Hague sitting in Haarlem rejected the applicant's request for a provisional measure.

On 5 March 2007, following a hearing held on 23 November 2006, the Regional Court of The Hague sitting in Haarlem rejected the applicant's appeal against the decision of 7 April 2006. It noted the final judgment of 1 February 2006 by the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle, and found that no facts or circumstances had appeared on the basis of which it should now reach another conclusion as regards the AIVD individual official report of 9 February 2005 or should reach a different decision in respect of the applicant's claim under Article 3 of the Convention. In this context, it further considered that this was not altered by the fact that on 2 February 2006 the European Court of Human Rights had issued an interim measure within the meaning of Rule 39 of the Rules of Court as this did not imply that the Court had reached the conclusion that the applicant's expulsion to Libya would be contrary to Article 3 of the Convention. It further considered, as it could only assess on an ex tunc basis the lawfulness of the decision to impose an exclusion order on the applicant, that it could not take into account the policy decision to install a moratorium on expulsions of Libyan asylum seekers (see below § 88) or the facts and circumstances having led to that policy decision as it had been taken after the impugned decision.

The applicant's subsequent appeal to the Administrative Jurisdiction Division of the Council of State was dismissed on 15 May 2007. It upheld the ruling of 5 March 2007 of the Regional Court. It found that the applicant's appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden) and that, having regard to article 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

In its letter of 11 June 2009, sent in reply to questions put by the applicant's lawyer, the Dutch Refugee Council (Vereniging VluchtelingenWerk Nederland) stated inter alia that it appeared from various sources that the Libyan authorities monitor opposition activities abroad, and that members of the many security and intelligence services of the Libyan Government often have a good insight in the activities and contacts of Libyans abroad. It further stated, referring to information from the Canadian Section of Amnesty International dated November 2005, that in the eyes of the Libyan authorities applying for asylum abroad is an act of opposition and that each opponent of the regime runs the risk of arbitrary detention and torture.

On 6 January 2010, the Libyan League for Human Rights in the Netherlands issued a statement, in which it declared that the applicant is a political opponent of the Libyan regime, that he is being searched for by the Libyan authorities for his political activities and that he, if he were to return to Libya, would risk imprisonment.

On 12 January 2010, the non-governmental organisation ‘Libya Watch for Human Rights’ based in the United Kingdom, released a statement, calling upon the Netherlands' authorities to grant the applicant asylum. It stated that it knew the applicant as a Libyan activist, that he had been involved in opposition activities inside Libya and abroad and that — in its opinion — his association with the National Front for the Salvation of Libya was in itself enough to lead to his arrest and torture should he return to Libya. It further expressed its concern that failed asylum seekers who are returned to Libya will become easy targets for the various Libyan security agencies in their efforts to act with an iron fist against enemies of the state. In this connection, it referred to the fate of Mohammed Abu Ali, a failed asylum seeker who was expelled from Sweden to Libya in May 2008 and who was tortured to death by the Libyan security services.

On 15 January 2010, the International Secretariat of Amnesty International issued a declaration in which it was concluded — on the basis of various reports concerning other returnees — that there are substantial grounds for believing that the applicant, if expelled to Libya, would face a real risk of serious violations of his human rights including Article 3 of the Convention, because of his membership of the Libyan League of Human Rights, because the National Front for the Salvation of Libya — an opposition group in exile — identified the applicant as a sympathiser, and because of the allegations of involvement in terrorism-related activities levelled against him by the Dutch authorities. Such violations would include torture or other ill-treatment, prolonged incommunicado detention and unfair trial before the State Security Court. Amnesty International further stated that its concern in the applicant's case was based on its monitoring of the treatment of a number of Libyan nationals suspected of involvement in terrorism-related activities who had returned — either forcibly or voluntarily — to Libya from abroad in recent years. Also in this declaration, reference was made to the death in Libyan custody of Mohamed Adel Abou Ali after his deportation from Sweden to Libya in May 2008. According to Amnesty International, the Libyan authorities claimed that he had committed suicide whereas an investigation by the Swedish Ministry of Foreign Affairs concluded in August 2008 that it was impossible to establish the cause of death.

Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the Aliens Act 1965, unless indicated otherwise in this Act.

Under article 11 of the Aliens Act 1965, a residence permit may be issued to an alien:

On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence.

According to the transitional rules, set out in article 11 of the Aliens Act 2000, an application for a residence permit or for admission as a refugee which was being processed at the time this Act entered into force would be considered as an application under the provisions of the Aliens Act 2000. Because no transitional rules were set for the substantive provisions of the aliens' law, the substantive provisions under the Aliens Act 2000 took effect immediately. However, pursuant to article 117 § 2 of the Aliens Act 2000, the procedural rules under the Aliens Act 1965 continued to apply to the processing of applications for a residence title submitted before 1 April 2001 when the Aliens Act 2000 entered into force.

Both under the Aliens Act 1965 and the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the administrative authority concerned has exercised its administrative powers in a reasonable manner and in the light of the interests at stake could reasonably have taken the impugned decision (marginale toetsing).

Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purposes of asylum if, inter alia,

Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien's request for admission to the Netherlands for the purposes of, for instance, asylum automatically has the following legal consequences:

Under the former Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called ‘multi-purpose decision’ (meeromvattende beschikking).

Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to national security. An exclusion order entails a ban on residing in or visiting the Netherlands.

An exclusion order can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have an automatic suspensive effect.

Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months' imprisonment or a fine of up to 4,500 euros.

An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.

In the case of an alien who has been denied a residence permit, who has not left the Netherlands voluntarily within the time-limit fixed for this purpose and who holds no travel documents, the Netherlands aliens police submit an application for a laissez-passer for the alien concerned to the Return Facilitation Unit (Unit facilitering terugkeer — ‘UFT’) of the Immigration and Naturalisation Department of the Ministry of Justice.

The UFT prepares the presentation of the alien concerned, either in person or in writing, to the authorities of the country to which the alien will be removed. A presentation in person consists of an interview with a staff member of the receiving country's representation, the aim being to establish the alien's identity and nationality. After this meeting, the authorities of the receiving country indicate whether they will examine the application for a laissez-passer. A presentation in person may be replaced by a presentation in writing. In such a case, the authorities of the receiving country are sent a letter — containing all information on the alien's identity known to the Netherlands authorities, such as his/her full name, date and place of birth, and any available information on parents and other relatives — asking these authorities to provide a laissez-passer.

Once the authorities of the receiving country have agreed to examine an application for a laissez-passer, the UFT sends regular reminders to these authorities, requesting the results of the investigation. Some reminders may concern an individual case while others may be couched in more general terms, requesting the results of all outstanding applications.

Article 8:27 § 1 of this Act reads:

Article 8:29 of the Act provides:

Article 8:31 of the Act reads:

Article 8:45 of the Act, in so far as relevant, reads:

An overview of the relevant domestic law and practice as regards the Netherlands intelligence and security services is set out in the Court's decision on admissibility in the case of Brinks v. the Netherlands (no. 9940/04, 5 April 2005).

Pursuant to article 15 of the Intelligence and Security Services Act 2002, the Heads of the intelligence and security agencies are to ensure the secrecy of data eligible for classification as confidential, the secrecy of sources eligible for classification as confidential from which data have been obtained, and the safety of persons with whose cooperation data are collected.

Article 47 § 3 the Intelligence and Security Services Act 2002 reads:

Article 53 § 1 of this Act provides as follows:

Article 55 § 1 (b) of the Act states:

Article 87 of the Intelligence and Security Services Act 2002 reads:

The most recent official country assessment report on Libya has been drawn up by the Netherlands Ministry of Foreign Affairs on 20 November 2002. The relevant parts of this report, which focuses on the situation in Libya of returned unsuccessful asylum seekers, read:

With the exception of the period between July 2002 and December 2006 when this was done by the Minister for Immigration and Integration, the respondent Government's policy on asylum seekers is devised by the Deputy Minister of Justice (Staatssecretaris van Justitie) on the basis of inter alia official country assessment reports published by the Minister of Foreign Affairs. As regards Libya, the last such report was released on 20 November 2002 (see above § 86).

On 7 July 2006, the Minister of Immigration and Integration adopted a moratorium until 1 January 2007 on expulsions and determination of asylum requests (vertrek- en besluitmoratorium) lodged by Libyan asylum seekers. This policy decision, as set out in the WBV (Wijzigingsbesluit Vreemdelingencirculaire 2000) 2006/28 of 16 August 2006, was based on a statement set out in the official report on Libya of 20 November 2002 according to which it could not be excluded, in case an unsuccessful asylum seeker was detained after his or her return to Libya, that ill-treatment or torture would occur in detention. A temporary stay of removals to Libya would allow awaiting further developments and a possible clarification of the situation. Libyans posing a threat to public order or national security were excluded from the moratorium.

In her letter to the Lower House of Parliament (Tweede Kamer) of 10 July 2006, informing it of this moratorium, the Minister stated that more recent reports of international organisations and the policy of other European Union States gave the impression that rejected asylum seekers who were not an opponent of the regime did not run a risk of being ill-treated or tortured. The Minister further stated that, due to a lack of investigation possibilities, the Minister of Foreign Affairs could not confirm or deny this, and that, after the summer of 2006, the Minister of Foreign Affairs would review again whether new possibilities of investigation had arisen.

On 15 December 2006, the Minister decided to prolong the moratorium until 30 June 2007, i.e. its maximum period of validity pursuant to article 43 of the Aliens Act 2000. By letter of 12 January 2007, the Minister explained to the Lower House of Parliament that the non-recurring prolongation had been decided because for the time being the Ministry of Foreign Affairs did not have any possibilities to examine the situation of returned, rejected asylum seekers in Libya and that it had indicated that an investigation would not be accomplished by 1 January 2007.

On 14 April 2009, in case no. 200802086/1, the Administrative Jurisdiction Division rejected an appeal filed by a Libyan national on whom an exclusion order had been imposed as he was considered to pose a threat to national security. This decision was based on the contents of an official report drawn up by the AIVD according to which this person publically praised jihad and martyrdom, was associated with a Libyan terrorist movement striving to establish in Libya a Wahhabism-based orthodox-Islamic regime, and was maintaining contacts with persons belonging to international terrorist networks. In his appeal, the appellant raised a number of grievances under Articles 3 and 13 of the Convention. The Administrative Jurisdiction Division rejected these complaints. It accepted the findings of the judges of the Regional Court of The Hague — who like the Administrative Jurisdiction Division itself had had access to the materials underlying the AIVD official report without these materials being disclosed to the parties — that the AIVD report had been drawn up with due care, that its contents had a sufficient factual basis in the underlying materials and that there were no reasons for doubting its correctness or completeness. It further accepted the Regional Court's refusal to give detailed reasons for rejecting the alleged incorrectness and incompleteness of the AIVD report as this would be incompatible with the confidential nature of the underlying materials. The Administrative Jurisdiction Division further accepted the finding of the Regional Court that it had not been established that the applicant was known to the Libyan authorities as a political opponent or otherwise would have attracted the negative attention of the Libyan authorities on the basis of which it should be accepted that he would be exposed to a risk of being subjected to treatment proscribed by Article 3 in case he would return to Libya.

In a letter of 22 December 2009, the Minister of Justice informed the Lower House of Parliament on the current asylum policy in respect of Libya. This letter reads in its relevant part:

The policy position set out in this letter of 22 December 2009 has been included in the most recent, relevant amendment of the Aliens Act Implementation Guidelines (WBV 2010/6 of 5 March 2010).

To date, no update has been issued to the official country assessment reports on Libya of 20 November 2002.

The Netherlands are a party to the 1951 United Nations Convention on the Status of Refugees. Articles 1, 32 and 33 of this Convention read as follows:

The Council of Europe has produced three international treaties relating to the fight against terrorism, namely:

Article 4 § 2 of the Protocol amending the European Convention on the Suppression of Terrorism states:

Article 21 § 2 of the European Convention on the Prevention of Terrorism provides:

Furthermore, following its meeting on 14 November 2001 to discuss ‘Democracies facing terrorism’ (CM/AS(2001) Rec 1534), the Committee of Ministers adopted on 11 July 2002 ‘Guidelines on human rights and the fight against terrorism’. These guidelines consist of seventeen principles — derived from various international legal and political texts and the Court's case-law — specifying the limitations which States are to respect in their efforts to combat terrorism.

These guidelines provided, inter alia:

In its report to the Italian Government on its visit to Italy from 27 to 31 July 2009 (CPT/Inf (2010)14 of 28 April 2010) and in the context of the so-called ‘push-back’ operations, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) stated in respect of the risk of torture or other forms of ill-treatment of persons returned to Libya:

The United Kingdom Home Office Country of Origin Information Key Documents (Libya) published on 22 April 2008, under the heading ‘Human Rights’ read as follows:

According to the ‘Amnesty International Report 2009 — Libya’ of 28 May 2009, the Society of Human Rights of the Gaddafi International Charity and Development Foundation (‘GDF’; headed by Saif al-Islam al-Gaddafi, a son of Mu'ammar al-Gaddafi) announced that 90 members of the Libyan Islamic Fighting Group had been released from prison following negotiations led by the GDF with the group's leaders. The GDF stated that this represented a third of the group's membership. The report further states that the Libyan authorities did not disclose any information about two Libyan nationals who were detained when they were returned from US custody in Guantánamo Bay in December 2006 and September 2007, respectively, and that this lack of information raised fears for their safety and that of other Libyans who might be returned under similar circumstances.

The ‘2009 Report on International Religious Freedom — Libya’, as released on 26 October 2009 by the United States Department of State reads inter alia:

In its ‘World Report 2010 — Libya’ of 20 January 2010, Human Rights Watch asserted that Libya continued to share intelligence on militant Islamists with Western governments, and that the United States and United Kingdom continued to consider Libya a strategic partner in counterterrorism efforts. According to Human Rights Watch, a number of those the United States had returned or rendered to Libya over the past five years remained in detention after unfair trials, and Libyan authorities continued to detain two Libyan citizens whom the US government returned in 2006 and 2007 from detention in Guantánamo Bay. In this report, Human Rights Watch further stated that in April 2009 it was able to confirm the detention of five former CIA secret detainees in Abu Salim prison.

The relevant parts of the ‘2009 Country Reports on Human Rights Practices — Libya’ issued on 11 March 2010 by the United States Department of State, read:

On 25 March 2010, Human Rights Watch issued a press release stating:

The applicant requested reimbursement of the costs and expenses incurred during the domestic proceedings as well as the proceedings before the Court, which, according to bills submitted, amounted to EUR 7,422.25.

The Government accepted that the costs claimed were specified and that the costs claimed for legal fees and legal representation were reasonable, but considered that the amount of EUR 952 claimed for costs of an expert opinion sought by the applicant had not been necessarily incurred.

According to the Court's established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see (see Saaid, cited above, § 191).

The Court notes that the expert opinion referred to by the Government concerns a report which formed a part of unsolicited submissions filed by the applicant and which were not accepted for inclusion in the case file, in accordance with Rule 38 § 1 of the Rules of Court. Consequently, no award under Article 41 of the Convention in respect of these costs is made.

As regards the remainder of the applicant's claim under this heading, the Court is satisfied that these costs and expenses were necessarily and actually incurred, and were reasonable. It therefore awards the remainder of EUR 6,470.25 for costs and expenses.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.