CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 mai 2008

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Zupančič,   Alvina Gyulumyan,   Egbert Myjer,   Ineta Ziemele, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 15 July 2005, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by Governments of Lithuania, Portugal, Slovakia and the United Kingdom and the comments submitted by the following non-governmental organisations: the AIRE Centre, Interights (also on behalf of Amnesty International Ltd., the Association for the Prevention of Torture, Human Rights Watch, the International Commission of Jurists, and Redress), Justice and Liberty, Having deliberated, decides as follows: THE FACTS 1.     The applicant claims to be Mohammed Ramzy, an Algerian national who was born in 1982. He is currently staying in the Netherlands, where he is known to the authorities under this and ten other identities. He is represented before the Court by Mr   M. Ferschtman and Mr   M.F.   Wijngaarden, both lawyers practising in Amsterdam, and Ms   B.J.P.M. Ficq, a lawyer practising in Haarlem. The Netherlands Government (“the Government”) are represented by their Agent, Mr   R.A.A.   Böcker, of the Ministry of Foreign Affairs. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties and derived from public documents, may be summarised as follows. The applicant's first and second asylum requests 3.     On 30 January 1998, after having been apprehended by the Flushing brigade of the Royal Military Constabulary ( Koninklijke Marechaussee ) whilst he was attempting to leave for the United Kingdom in a lorry, the applicant applied for asylum in the Netherlands. During his interview by the Netherlands immigration authorities, the applicant stated that he had largely been brought up in an orphanage in Algeria, that he had never known his natural parents and that he had spent a short period with foster parents who gave him the name Ramzy. The applicant explained that he had left Algeria given the general unsettled and dangerous situation there. He had not been involved in any political activities against the Algerian authorities. He further claimed that he had been abused in the orphanage and that, a long time before leaving Algeria, he had been approached by the Islamic fundamentalist movement FIS ( Front Islamique du Salut ). The applicant did not want to divulge any further details about this claim. 4.     As the applicant did not hold any travel documents and had not immediately applied for asylum upon his arrival in the Netherlands, the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant's asylum request on 7 October 1998. The applicant did not avail himself of the possibility to appeal this decision, which thus became final. 5.     On 9 September 1999, the applicant filed a second asylum application, submitting that he could not return to Algeria because young people were being killed there, that he had no one in Algeria any more and that he wished to build a new life in the Netherlands. He further stated that he had never had any problems with the Algerian authorities. 6.     On 14 September 1999, the Deputy Minister dismissed this second asylum request as a repeat application based on similar grounds to those relied upon in a previous asylum application that had been rejected in a final decision. The applicant unsuccessfully challenged this decision in appeal proceedings. The final decision on the second asylum application was taken on 6 October 1999 by the Regional Court ( arrondissementsrechtbank ) of The Hague sitting in Zwolle. The applicant continued to reside illegally in the Netherlands. Domestic intelligence reports 7.     On 19 December 2001, the Netherlands National Security Service ( Binnenlandse Veiligheidsdienst – “BVD”) sent an official report ( ambtsbericht ) to the national public prosecutor responsible for combating terrorism ( landelijk officier van justitie terrorismebestrijding ), part of which reads as follows: “In the exercise of the statutory task of the BVD, the following has appeared from reliable sources: 1.   As regards J. (as yet no further personal data are known) it has been established that he forms part of a network of extremist Muslims and inter alia maintains contacts with members of the so-called Groupe Salafiste pour la Prédication et le Combat , GSPC. He has also in the recent past played a facilitating role in channelling through Islamist fighters from the United Kingdom to training camps in Afghanistan and to international areas of holy war, the so-called 'jihad' (Chechnya, Afghanistan). For this purpose, J. arranges forged travel documents. 2.   J. has also organised the journey to Afghanistan of one of the persons who on 9   September 2001 carried out a suicide attack on the former army commander Massoud of the Northern Alliance in Afghanistan. 3.   It has been established that J. was in Afghanistan or Pakistan on 17 September 2001. From there, he played a role in the organisation of a journey of another radical Muslim with the aim of collecting money in European mosques for the benefit of the jihad. 4.   It has been established that J. has regularly been in Belgium over the past weeks. During that period he was looking for a forged passport in order to travel on that passport to Iran having Afghanistan as his final destination. J. travelled to the Netherlands on 18 December 2001 in order to obtain a forged travel document.” 8.     On 22 April 2002, the Head of the BVD sent a further official report to the national public prosecutor responsible for combating terrorism. This report reads in its relevant part: “In the framework of its statutory task, the BVD is investigating a network active in the Netherlands which is associated with Islamic terrorist organisations. It concerns the Groupe Salafiste pour la Prédication et le Combat (GSPC); an organisation that works from the same ideological basis as the Al Qaeda network. The GSPC is an Algerian extremist Islamic organisation of which it is generally known that it has prepared and carried out attacks in Algeria and elsewhere. The part of this network which is active in the Netherlands is in particular involved in providing material, financial and logistical support and in propagating, planning and actually using violence for the benefit of the international jihad. The members of this network understand jihad as the armed battle in all its forms against all enemies of Islam, including the (for them) unacceptable governments in the Middle East and the United States [of America]. It appears from the investigation conducted by the BVD that the part of this network which is active in the Netherlands is implicated in closely interwoven activities which complement and reinforce each other and which serve the same goal, namely the waging of jihad. The most important activities are the following: The network is active in assisting in the entry [into the Netherlands], housing and transit of persons having actively participated in jihad. The members of the network provide these persons with (forged) identity papers, money and shelter. These persons possibly include fighters coming from an area where an armed conflict is ongoing. It is not excluded that at the addresses cited below [of the persons belonging to the part of the network active in the Netherlands] persons as referred to above are also being sheltered. The network is active in recruiting young men in the Netherlands for effectively conducting jihad. To this end, these young men are incited to prepare for martyrdom and they are enabled materially, financially and logistically to leave for a battle scene. As an example, one can think of Kashmir where earlier this year two young Dutch men of Moroccan origin were killed. In this context a battle scene must be interpreted broadly, including areas where there is an armed conflict between different parties, but also terrorism. The part of this network which is active in the Netherlands finances its own activities with proceeds from trading in and exporting hard drugs. It must be emphasised that it has appeared to the BVD that the trade in and export of hard drugs as well as the forcing into submission of those involved in the trade and transport are religiously sanctioned. This means that the proceeds of the trade in and export of hard drugs are used for the commonly subscribed goal of jihad, and that disobedience is labelled as apostasy and severely punished. In this context, the BVD knows that a member of this network who has embezzled a quantity of drugs is regarded as an apostate and is currently searched for by members of this network active in the Netherlands. It appears from recorded telephone conversations that violence will be used against this person. It appears from the terminology used that there is a serious risk of liquidation. Lastly it must be noted that these activities take place in an organisational setting. Facilitation, falsification, recruitment, financing and liquidation for the benefit of jihad always take place in mutual consultation and coordination between members of this network. The activities of the network have been continuing in any event from 2001 to date. Investigations have disclosed that part of this network is active in the Netherlands and that the following persons form part of this network: 1. ... alias D. ...; 2. ... alias O. ...; 3. ... alias S. ...; 4. M. ... 5. [the applicant] 6. ... alias Taher ... All the above-cited persons do not have Netherlands citizenship and do not have any legal residence status in the Netherlands. The persons in this network dispose of a submachine gun and one or more handguns. Ad 1: D. has sheltered and provided J. with forged identity papers. J. forms part of the above-cited GSPC and organised the journey to Afghanistan of one of the persons who on 9 September 2001 carried out a suicide attack on the former army commander Massoud of the Northern Alliance in Afghanistan. D. was aware of J.'s involvement in this [operation]. During his flight from the Belgian judicial authorities, J. stayed in a safe house of D.'s, namely at [address in the Netherlands]. At the request of the Belgian authorities, J. was arrested in the Netherlands on 19 December 2001 and extradited. At the moment of his arrest, J. was travelling under the following identity .... D. provides, together and in association with O. and S., facilities to a number of supporters and members of the network, who have not yet been further identified. There are strong indications that these persons have been involved or will become involved in violent Islamic jihad. To this end, D arranges forged identity papers for these persons in an organised association with O., S., [the applicant] and [Taher] and other persons unknown to us. D. is involved, together and in association with O. and S., in the planning and execution of a fatwa (which the persons concerned understand as a sanction imposed under Islamic law by prominent clergymen) issued against a courier of the network, named F. This involvement consists inter alia of actively searching for this person in order to confront him with his undesirable behaviour before sanctions are carried out by members of the network. It appears from recorded telephone conversations that violence will be used against this person. It appears from the terminology used that there is a serious risk of liquidation. There are indications that D. uses his authority to recruit and indoctrinate youngsters in order to conduct violent jihad. To this end D. disposes of video cassettes and other propaganda material. Ad 2: O. is involved in the Netherlands in the organisation, direction and carrying out of drug transportation for the purposes of financing the network and its activities. O. has, together and in association with S., twice organised the transport of a number of kilograms of cocaine from the Netherlands to Italy. ... Ad 5: [The applicant] arranges, in an organised association with D., forged identity papers for supporters and members of the network. There are strong indications that these persons have already been involved or will become involved in violent Islamic jihad. Ad 6: [Taher] arranges, in an organised association with D., forged identity papers for supporters and members of the network. There are strong indications that these persons have already been involved or will become involved in violent Islamic jihad.” 9.     In a subsequent official report of 24 April 2002, the Head of the BVD informed the national public prosecutor responsible for combating terrorism of the mobile telephone number that was being used by the applicant. 10.     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”). The criminal proceedings against the applicant 11.     On 24 April 2002, in the context of a criminal investigation by the National Prosecutor's Office ( Landelijk Parket ) into an extremist Islamic organisation, opened on the basis of information obtained from the BVD, a number of houses in different cities in the Netherlands were searched. As a result of these searches, ten persons were arrested, four of whom were taken into custody. Five others were released after questioning and one other person was placed in aliens' detention for expulsion purposes ( vreemdelingenbewaring ). The applicant, who had not been present in any of the houses searched, was not among the group of persons arrested. According to a press release issued on 24 April 2002 by the National Prosecutor's Office, it was believed that the four persons taken into custody formed part of the Groupe Salafiste pour la Prédication et le Combat (GSPC) and had been involved in providing logistical support to the international jihad by providing from the Netherlands (forged) identity papers, money and shelter to jihad combatants. The press release further stated that those taken into custody were Algerian nationals and that about ten forged passports had been seized during the searches conducted. 12.     In a fax message of 26 April 2002, apparently prompted by the press release of 24 April 2002, the Ambassador of Algeria in the Netherlands requested the National Prosecutor's Office to provide further information about the investigation. On 2 May 2002, the National Public Prosecution Service replied that any such request should be directed to the Netherlands Ministry of Foreign Affairs. No further action was undertaken by the Algerian Embassy in the Netherlands. 13.     On 12 June 2002, the applicant was arrested in the Netherlands and detained on remand on suspicion of, inter alia , participation in (the activities of) a criminal organisation pursuing the aims of aiding and abetting the enemy in the conflict opposing, on the one hand, the United States of America, the United Kingdom and their allies – including the Netherlands – and, on the other, Afghanistan (under Taliban rule until January 2002) and/or the Taliban and their allies (Al-Qaeda and/or other pro-Taliban combatants) and which organisation was further involved in drug-trafficking, forgery of (travel) documents, providing third persons with forged (travel) documents, and trafficking in human beings. 14.     The basis for the suspicions against the applicant and the others was formed by official reports that had been drawn up by the BVD/AIVD, the content of telephone conversations that had been intercepted by the BVD/AIVD, and books, documents, video and audio tapes that had been found and seized in the course of searches carried out. 15.     The applicant and eleven co-suspects were subsequently formally charged and summoned to appear before the Rotterdam Regional Court in order to stand trial. In its judgment of 5 June 2003, following public trial proceedings that had attracted considerable media attention, the Rotterdam Regional Court acquitted the applicant of all charges, finding that these had not been legally and convincingly substantiated, and ordered the applicant's release from pre-trial detention. 16.     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. 17.     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 ( Openbaar Ministerie ), 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. The proceedings on the applicant's third asylum application, the decision to impose an exclusion order on him, and the applicant's placement in aliens' detention 18.     Immediately after his release from pre-trial detention on 5 June 2003, the applicant was apprehended by the aliens' police ( vreemdelingenpolitie ) and placed in aliens' detention for expulsion purposes. On the same day, he filed a third application for asylum in the Netherlands. On 18 June 2003, the applicant was interviewed by immigration officials in relation to this new asylum application. 19.     On 24 June 2003, the applicant was informed of the intention ( voornemen ) of the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie – “the Minister”) – as well as the reasons for this intention – to reject his third asylum application. By submissions of 10 and 15 July 2003 to the Minister, the applicant commented on this intention, submitting inter alia that in the case of Z. – one of his co-accused in the Rotterdam trial – the Algerian authorities had questioned this person's father and brother about Z.'s whereabouts and activities, and had given them a warrant for Z.'s arrest. According to an appended ruling given on 13   June 2003 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem, in connection with Z.'s application for asylum in the Netherlands, this claim had been rejected for having remained unsubstantiated and the alleged destruction of this arrest warrant by Z.'s brother was found unconvincing. 20.     On 21 July 2003, pursuant to Article 59 § 4 of the 2000 Aliens Act ( Vreemdelingenwet ), the applicant was released from aliens' detention as no decision had been taken by the Minister on his third asylum application within 42 days. The applicant was ordered to leave the Netherlands. 21.     On 26 February 2004, using a forged Dutch passport, the applicant travelled by air from Cologne (Germany) to Istanbul (Turkey) where he applied for asylum. The Turkish authorities refused to take his asylum application into consideration and, on 27 February 2004, sent him back to Germany, where on 8 March 2004 he applied for asylum under the name which was given in the forged passport and which he had not used previously. On 14 May 2004, under the provisions of the Dublin Convention of 15 June 1990, the German authorities requested the Netherlands to accept responsibility for the applicant's asylum application. On 16 June 2004, the Netherlands authorities accepted that responsibility and, on 15 July 2004, the applicant was transferred to the Netherlands, where he was immediately placed in aliens' detention. 22.     On 14 July 2004, the AIVD drew up an individual official report ( individueel ambtsbericht ) on the applicant, which reads: “It has appeared from [an] investigation[s] by the AIVD, that [the applicant] had the intention to become engaged once again in violent jihad. The AIVD understands that violent jihad represents the armed struggle in all its forms against all enemies of Islam. [The applicant] has been arrested on 12 June 2002 after the issuance of an AIVD official report (reference 1830636/01 of 22 April 2002) to the national public prosecutor responsible for the fight against terrorism in which he was designated as a member of a network who was in particular involved in material, financial and logistical support and in propagating, planning and effectively using violence for the benefit of the international violent jihad. This led to a court case in May/June 2003 in which [the applicant] was acquitted. The public prosecution department intends to lodge an appeal against this judgment. For violent jihad purposes and having Iraq as [his] ultimate destination, [the applicant] attempted in February 2004 to travel to Turkey via Germany. He was apprehended in Turkey and sent back to Germany where he will be held in aliens' detention until 15 July 2004. On 15 July 2004, the German authorities will hand him over to the Netherlands authorities. It has appeared that [the applicant's] arrest has not induced him to change his views as regards the, in his perception, Islamic duty of active participation in violent jihad. The AIVD considers that [the applicant] poses a threat to national security.” 23.     On 21 July 2004, immigration officials conducted an additional interview with the applicant in relation to his third asylum application, in which he declared, inter alia , that his friend Taher, one of his co-accused in the Rotterdam trial, had disappeared after having returned to Algeria. The applicant had heard this from unspecified friends and acquaintances. On 5   August 2004, he was notified of the Minister's fresh intention to reject his asylum application, on which the applicant filed comments in reply on 19   and 20 August 2004. 24.     On 23 August 2004, following the AIVD official report of 14 July 2004, the applicant was interviewed by a senior official of the police in his place of residence in connection with a proposal to impose an exclusion order ( ongewenstverklaring ) on him. During this hearing, the applicant declared inter alia that for reasons of common knowledge about the situation there he did not wish to return to Algeria, that he knew that he could not stay in the Netherlands, that he had no reasons to remain in the Netherlands and that he had no objections to moving to an Islamic country. 25.     On 25 August 2004, the Minister rejected the applicant's third asylum application. The applicant was further ordered to leave the Netherlands within 24 hours and informed that an appeal would not have suspensive effect as regards his expulsion from the Netherlands. On 26   August 2004, the applicant filed an appeal to the Regional Court of The Hague as well as a request for an interim measure, namely an injunction on his expulsion pending the determination of his appeal. 26.     By decision of 14 September 2004 and mainly on the basis of the content of the official reports of 22 April 2002 and 14 July 2004, the Minister imposed an exclusion order on the applicant. The Minister held that the applicant posed a threat to national security and that imposing an exclusion order on him was in the interests of the Netherlands' international relations. 27.     On 22 September 2004, the applicant filed an objection ( bezwaar ) against this decision with the Minister. He further requested the Regional Court of The Hague to extend the scope of his request for an interim measure of 26 August 2004 in that the injunction requested would also cover the duration of the proceedings on his objection against the decision to impose an exclusion order on him. 28.     On 2 November 2004, the provisional-measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Haarlem granted the applicant's request for an injunction and ordered that he was not to be expelled pending the determination of his appeal of 26   August 2004 against the refusal to grant him asylum. The provisional ‑ measures judge further suspended the Minister's decision of 14   September 2004 to impose an exclusion order on the applicant. 29.     On 10 November 2004, the Minister filed an appeal against the ruling of 2 November 2004 – in so far as it related to the suspension of the decision of 14 September 2004 – with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ), and requested the President of the Administrative Jurisdiction Division to order an interim measure. 30.     On 16 November 2004, the applicant was heard before an official board of inquiry ( ambtelijke commissie) on his objection of 22 September 2004 against the decision to impose an exclusion order on him. During this hearing, the applicant denied that he had formed part of an Islamic extremist network, denied that he had intended to travel via Turkey to Iraq, and denied ever having undertaken any actions which could have undermined the Netherlands State. He pointed out inter alia that he had been acquitted of the criminal charges brought against him, and that there was no evidence for the danger he allegedly posed for the Netherlands' national security. He further stated that, if returned to Algeria, he would have problems with the Algerian authorities, who knew everything about him. His friend Taher had gone to Algeria where he had been arrested immediately. Although the applicant stated that he knew what Taher was being accused of, he did not offer any further details. When asked about the existence of concrete indications that the Algerian authorities would persecute him, the applicant stated that the Algerian authorities suspected that there was a Salafist movement in the Netherlands that was providing financial support to groups in Algeria. He had had contacts with members of that group because he had seen these persons in the mosque. The AIVD also had that information and had investigated this group. The applicant further stated that for him it was clear that he would immediately be arrested if he returned to Algeria, as the Netherlands had made known certain suspicions for which he would certainly be arrested. He did not trust the Algerian authorities. 31.     On 19 November 2004, by way of an interim measure as requested by the Minister on 10 November 2004, the President of the Administrative Jurisdiction Division lifted the suspension of the decision to impose an exclusion order on the applicant. 32.     By judgment of 23 December 2004, following a hearing held on 2   December 2004, the Regional Court of The Hague sitting in Haarlem upheld the applicant's appeal of 26 August 2004, quashed the Minister's negative decision of 25 August 2004 on the applicant's third asylum application, and ordered the Minister to take a fresh decision on the matter. This ruling, in its relevant part, reads as follows: “2.13. The court will first assess whether [the applicant] has substantiated that the Algerian authorities have become aware of the suspicions that have arisen as to his involvement in a terrorist organisation and of the associated criminal proceedings that were taken against him. ... 2.15. The court finds, and this point is not in dispute, that the Rotterdam jihad trial has been given a great deal of attention in the national and international media. The court hearing in this trial was of a public nature. It is considered to be generally well-known that on a national and international level, in any case since September 2001, increasing attention has been given to the fight against (international) terrorism. The Netherlands security service and security services of other countries are striving to achieve a greater level of cooperation and to play an increasingly active role in the context of combating terrorism. Of particular importance in this case is the so-called European-Mediterranean Agreement of December 2001 through which an association was established between the European Community and its Member States on the one hand, and the Democratic People's Republic of Algeria on the other. This agreement devotes attention to inter alia “cooperation in the field of justice and internal affairs, in particular through institution-building and consolidating the rule of law, and this in particular in the field of visas, illegal immigration and the fight against terrorism and organised crime”. In the court's opinion, the above-mentioned attention given to the jihad trial, in combination with current activities on the part of national and international authorities aimed at combating terrorism, entail that it has been sufficiently established that the criminal proceedings that were taken against [the applicant] and the suspicions held against him in these proceedings have become known to the Algerian authorities. There is no question of the Algerian authorities only possibly being aware of them. The fact that in two articles published [in a Netherlands national daily newspaper] on 20 May 2003 ..., [the applicant] was not referred to by his full personal details, does not mean that the Algerian authorities have not become aware of [the applicant's] personal details [in another manner than through] the national media. This leads to the conclusion that [the Minister] cannot reasonably have adopted the view that [the applicant] merely based his assertion on assumptions and conjecture as far as the Algerian authorities' awareness of his suspected involvement in a terrorist organisation was concerned. ... 2.16 Assuming that the Algerian authorities are aware of the suspicions as to [the applicant's] involvement in a terrorist organisation, the next pertinent question is whether [the applicant] runs a real risk of being subjected to treatment referred to in Article 3 of the Convention if he returns to Algeria. ...   2.20. The court is of the opinion that it has been established, in view of the content of [the official country assessment report on Algeria, issued in December 2003 by the Netherlands Ministry of Foreign Affairs], that [the applicant] upon his return [to Algeria] will be questioned at the border about his stay in the Netherlands. This questioning and the awareness of the Algerian authorities of the [the applicant's] suspected involvement in terrorist activities mean that there is a real risk of [the applicant's] being detained and exposed to treatment within the meaning of Article 3 of the Convention. The suspicions that have arisen against [the applicant] relate to suspected involvement in an Islamic terrorist organisation and, according to the official country assessment report, there is a risk of torture and ill ‑ treatment in particular for persons who are suspected of participating in, or supporting, armed Islamic groups. Amnesty International's annual report for 2004, which is referred to in this official country assessment report, also states that this risk applies to these persons in particular. ... [The Minister's] assertion that the official country assessment report does not permit of the conclusion that treatment proscribed by Article 3 occurs always and under all circumstances cannot be endorsed by the court. The court finds that the suspicions that have arisen against [the applicant] and the criminal proceedings that have been taken as a result, when considered together with the official country assessment report and the report by Amnesty International, mean that there is a real risk and not just a mere possibility of a violation of Article 3 of the Convention. 2.21. During the hearing [of 2 December 2004], [the Minister] stated that, even if the existence of a risk of treatment prohibited under Article 3 had to be assumed and, consequently, [the applicant] was [eligible for a residence permit for the purposes of asylum under Article 29 § 1 (b) of the 2000 Aliens Act], [the Minister] would not grant a residence permit. In that case, [the Minister] would make use of his discretionary power as laid down in Article 29, and refuse to grant a residence permit in connection with the threat to national security. 2.22. The court finds that, in the present proceedings, [the Minister's] opinion that [the applicant] represents a risk to national security does not form a part of the dispute and it will therefore not comment on it. 2.23. In view of the impugned decision, the court finds that the refusal to grant a residence permit for asylum for a definite period, for the reasons set out in that decision, is not supported by sufficiently decisive grounds.” On 20 January 2005, the Minister lodged an appeal against this ruling with the Administrative Jurisdiction Division. 33.     In a decision of 11 February 2005, following a hearing on 6   January 2005, the Administrative Jurisdiction Division quashed the decision of 2   November 2004 of the provisional-measures judge in so far as it suspended the decision to impose an exclusion order on the applicant. It found that, although pursuant to section 37 § 2 (c) of the Council of State Act ( Wet op de Raad van State ) no appeal lay against a decision of the provisional ‑ measures judge within the meaning of section 8:84 § 2 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), this part of the decision of 2 November 2004 – which entailed a cessation of the legal effect of the decision to impose an exclusion order on the applicant, thus creating consequences as regards the legal basis for the applicant's placement in aliens' detention and the lawfulness of his stay in the Netherlands – had not been taken on the basis of a request to this effect by the applicant in respect of which the Minister had had an opportunity to present arguments but was a decision taken on the provisional-measures judge's own motion. Concluding that this part of the decision had thus been taken in breach of due process and fundamental principles of law, the Administrative Jurisdiction Division agreed to examine the Minister's appeal, which it subsequently considered well-founded. 34.     On 22 February 2005, the applicant filed a new request for an interim measure with the Regional Court of The Hague, requesting that the Minister's decision of 14 September 2004 to impose an exclusion order on him be suspended. This request was dismissed on 1 April 2005 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem. 35.     On 17 May 2005, the applicant lodged an appeal with the Regional Court of The Hague against the continuation of his placement in aliens' detention. In the course of the hearing on this appeal, held on 30 May 2005 before the Regional Court of The Hague sitting in Groningen, it was submitted on behalf of the Netherlands State that it was intended – as soon as the Administrative Jurisdiction Division had determined the Minister's appeal of 20   January 2005 – for a high-level delegation of the Netherlands Ministry of Foreign Affairs to discuss the applicant's case with the Algerian authorities, that a date for this meeting had already been scheduled but that the applicant would not be presented to the Algerian authorities before the determination of the appeal of 20 January 2005. 36.     On 3 June 2005, the Regional Court of The Hague sitting in Groningen rejected the applicant's appeal of 17 May 2005. It held that the applicant's placement in aliens' detention continued to be justified in that there remained sufficient prospects for expulsion within a reasonable time. In reaching this finding, the court took into account the fact that an exclusion order had been imposed on the applicant, and that he had not undertaken any steps capable of shortening his placement in aliens' detention by providing information for the purposes of establishing his identity and nationality, also bearing in mind the fact that he had used aliases. 37.     On 6 July 2005, the Administrative Jurisdiction Division accepted the Minister's appeal of 20 January 2005, quashed the impugned judgment of 23 December 2004 and dismissed the applicant's appeal of 26 August 2004 against the negative decision on his third asylum application. It held, in so far as relevant: “The [applicant] has never been granted a Netherlands residence permit. He based his [asylum] application, rejected in the above-cited decision of 25 August 2004, on the claim that he must now fear that, in view of the criminal trial proceedings taken against him, the Algerian authorities have become aware of the suspicions having arisen against him in the Netherlands as to his involvement in a terrorist organisation. Unlike the Regional Court, [the Administrative Jurisdiction Division considers that] even if such awareness had to be assumed to exist, the Minister did not have to find – noting what has been stated in respect of Algeria in the official report of the Minister for Foreign Affairs of December 2003 – that the applicant had therefore established that, in the event of expulsion, he would run a real risk of being subjected to treatment within the meaning of Article 3 [of the Convention]. Also in the light of what [the applicant] has submitted in general terms about the Algerian authorities' attitude towards terrorism, the information contained in the official report does not prompt that conclusion. The [applicant] has failed to adduce, let alone substantiate, any facts and circumstances relating to him personally that could lead to the conclusion that such treatment would await him if he were expelled to Algeria. In this context, he has only made a mere reference to the suspicion against him and to the resulting criminal proceedings, as well as speculation about the possible consequences thereof in the event of his return to Algeria. It was not for the Minister to demonstrate that this alleged risk did not in fact exist. The appeal succeeds.” No further appeal lay against this decision. 38.     On 15 July 2005, the applicant lodged the present application with the Court. On the same date and at the applicant's request, the Acting President of the Third Section of the Court decided to indicate to the respondent Government under Rule 39 of the Rules of Court that the applicant should not be removed to Algeria until further notice. 39.     On 21 July 2005, the applicant filed an appeal with the Regional Court of The Hague on grounds of the Minister's failure to determine in a timely manner his objection of 22 September 2004 against the decision to impose an exclusion order on him. 40.     In a judgment given on 2 August 2005, following proceedings on a fresh appeal against the applicant's continued placement in aliens' detention, the Regional Court of The Hague concluded that the detention continued to be justified in that there remained sufficient prospects for his expulsion within a reasonable time. 41.     On 31 August 2005, the Minister rejected the applicant's objection of 22   September 2004 against the decision to impose an exclusion order on him. Referring to the AIVD individual official report on the applicant of 14   July 2004, the Minister held that this decision had been taken on correct and sufficient grounds, as he posed a danger to national security and as this order was furthermore in the interest of international relations. 42.     On 12 September 2005, the Regional Court of The Hague sitting in Amsterdam informed the applicant and the Netherlands State that it would consider the applicant's appeal of 21 July 2005 as an appeal against the Minister's decision of 31 August 2005. Already on 2 September 2005, the applicant had also requested the Regional Court to order an interim measure to the effect that the exclusion order of 14 September 2004 be suspended. 43.     On 5 September 2005, the applicant lodged an appeal with the Regional Court of The Hague against his continued placement in aliens' detention. In its judgment of 15 September 2005, the Regional Court of The Hague sitting in Leeuwarden – noting the time spent by the applicant in aliens' detention, the interim measure under Rule 39 of the Rules of Court indicated on 15 July 2005 and the uncertainty as to the date when the Court would examine the merits of the application lodged by the applicant – concluded that there were no prospects for the applicant's expulsion from the Netherlands within a reasonable time. Consequently, it accepted the applicant's appeal, ordered his release from aliens' detention and awarded him an amount of 2,660 euros (EUR) in compensation for the time he had spent in aliens' detention after 9 August 2005. The applicant was released on the same day. 44.     On 17 October 2005, the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam suspended the exclusion order pending the determination of the applicant's appeal against the Minister's decision of 31 August 2005. The judge held that the Minister had failed to comply with the obligation to ascertain – before taking the decision to impose the exclusion order at issue – whether the conclusions drawn in the AIVD official report were sufficiently supported by the underlying material. The judge rejected the Minister's argument that this requirement did not apply to individual official reports drawn up by the AIVD and, in this context, noted that section 87 of the Intelligence and Security Services Act 2002 provided the Minister with the possibility of gaining access to underlying material and that, for this purpose, a covenant had been entered into in 2003 between the Minister and the AIVD. The judge therefore concluded that, as the Minister had failed to check the conclusions drawn in the AIVD individual official report, the applicant's interest in obtaining a suspension of the exclusion order pending the determination of his appeal against this order outweighed the Minister's interest. 45.     On 17 November 2005, a hearing on the applicant's appeal was held before the Regional Court of The Hague sitting in Amsterdam. On 22   December 2005 – the parties having consented to the appeal being determined also on the basis of that material – the Regional Court was given access to the material underlying the AIVD individual official report of 14   July 2004 without that material being disclosed to the applicant. 46.     In a judgment of 10 March 2006, the Regional Court of The Hague sitting in Amsterdam rejected the applicant's appeal against the Minister's decision of 31 August 2005. It noted that – under section 67 § 1 (c) of the Aliens Act 2000 ( Vreemdelingenwet ) – an exclusion order could be imposed on an alien if he constituted a danger to public order or national security and did not lawfully reside in the Netherlands; that – under section 67 § 1 (e) of the Aliens Act 2000 – an exclusion order could be imposed on an alien in the interest of the international relations of the Netherlands; that – under section 67 § 3 of the Aliens Act 2000 – an alien against whom an exclusion order had been issued was barred from any residence rights; and that section 6.5 (c) of the Aliens Decree 2000 ( Vreemdelingenbesluit ) provided that in any event an exclusion order could be issued against an alien under section 67 § 1 (b) or (c) of the Aliens Act 2000 if the alien – not lawfully residing in the Netherlands – constituted a danger to national security. It considered that, as the impugned exclusion order had been issued of the Minister's own motion, it was for the Minister to establish the facts and circumstances on which the order was based. The exclusion order at issue was based on the AIVD individual official report of 14 July 2004, as well as on the AIVD official reports relating to the applicant of 22 and 24 April 2002. In this respect, the Regional Court considered that, where the Minister based a decision on an individual official report, such a report was to be regarded – according to the constant case-law of the Administrative Jurisdiction Division – as an expert opinion ( deskundigenbericht ) drawn up for the Minister for the purposes of the latter's exercise of his powers. To this end, this expert opinion had to provide information in an impartial, objective and clear manner, indicating – to the extent that this was possible and safe ( verantwoord ) – the sources from which the information had been derived. If those requirements were met, the Minister was allowed – in the decision-making process – to rely on that information as being correct, unless there were concrete indications to doubt its correc