CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 novembre 2009

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Zupančič,   Alvina Gyulumyan,   Egbert Myjer,   Luis López Guerra, judges, and Santiago Quesada, Section Registrar , Having regard to the above application lodged on 1 February 2006, Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court, Having regard to the observations submitted by the respondent Government 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, Mr A. is a Libyan national who was born in 1972 and lives in Eindhoven. He is represented before the Court by represented by Mr   Ph.J. Schüller and Mr   M.   Ferschtman, both lawyers practising in Amsterdam. The Dutch 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, may be summarised as follows. 1.     The proceedings on the applicant’s asylum request 3.     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. The applicant cited the names of nine members of this group, including X. and Y. who had had contacts with opposition groups abroad. The activities of the group consisted of holding regular meetings (once or twice per week), distributing pamphlets and informing people about the Libyan regime by inter alia distributing publications by the Libyan opposition abroad. The group had begun having problems with the Libyan authorities as from late 1992 or early 1993 when a first group member, X., had been arrested. He had been executed in prison and, together with many others, the applicant had attended X.’s funeral. More arrests of group members followed and the group had met for the last time in the end of 1993. When virtually all his 10-15 friends in this group had been arrested and detained, the applicant decided to flee Libya which he did by the end of 1994 without, however, having himself encountered any problems with the Libyan authorities. He had learned later that three of the arrested group members, including Y. had been released. 4.     He had left Libya by bus via an official Libyan-Egyptian border crossing. The bus driver had collected the passports of all passengers and had taken them to the control post. He could not remember whether his passport had been stamped. After his departure for Saudi Arabia, he had learned from pilgrims whom he had met that his younger brother and brother-in-law had been arrested. He did not know what had happened with them since. After a brief illegal stay in Saudi Arabia where he had lost his passport, the applicant travelled on to Yemen where he stayed for about eights months, mostly in an aliens’ detention centre. Attempts by the Libyan consul in Yemen to have him expelled to Libya failed on account of 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. 5.     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. 6.     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. 7.     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. The NFSL had learned this through X. with whom the NFSL had had contacts for the purposes of the distribution of NFSL materials in Libya. 8.     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. 9.     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. 10.     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. 11.     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. 12.     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 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. 13.     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. 14.     By letter of 16 April 2003, the Minister for Immigration and Integration ( Minister voor Immigratie en Integratie ; the successor of 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 with the Regional Court of The Hague. 15.     On 16 June 2003, after the applicant had been heard on this objection on 12 June 2003 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 an ex officio residence title on account of the duration of the still pending proceedings on his asylum request ( tijdsverloop in de asielprocedure ). 16.     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. 17.     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. 18.     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 request. 19.     On 17 July 2003, the Minister withdrew the decision of 16 June 2003 in respect of 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 proceedings on his asylum request as, 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. 20.     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 would be expelled to Libya, the Minister rejected the applicant’s objections of 3 March 1998 and 17 June 2003. 21.     On 29 November 2004 the Regional Court of The Hague sitting on Middelburg accepted the two separate appeals filed by the applicant and remitted the case to the Minister for fresh decisions. 22.     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 § 46). At his lawyer’s advice, the applicant did not wish to react on that intention during this hearing. 23.     On 3 November 2005, the Minister 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 § 33). Noting that, after having 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 for 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 did not find it established that – on account of the criminal proceedings taken against the applicant in the Netherlands (see below §§ 34-38) 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. 24.     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 on the applicant against which the applicant had filed an objection (see below § 49), he also applied for a provisional measure allowing him to remain in the Netherlands pending the determination of this objection by the Minister. 25.     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. 26.     On 1 February 2006, the provisional-measures judge of the Regional Court of The Hague sitting in Zwolle rejected the applicant’s two requests for a provisional measure as well as his two appeals 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 was posing 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. 27.     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 § 56), the Netherlands authorities had only provided the 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. 28.     As to the applicant’s further argument that, given the publicity attracted by the criminal proceedings taken against him before the Rotterdam Regional Court, 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 for the purpose of obtaining travel documents. 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. 29.     As regards the applicant’s request for a provisional measure in relation to 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 1965 Aliens Act ( Vreemdelingenwet ), no further appeal lay against this ruling of the provisional-measures judge. 2.     Relevant official reports drawn up by the Netherlands intelligence and security services 30.     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: “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. ...” 31.     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”). 32.     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: “I. The recruitment network In the exercise of its statutory task, it has appeared to the AIVD from reliable, vulnerable sources, that a network of extremist muslims is active in the Netherlands which is in particular involved in providing material, financial and logistical support and in propagating, planning and inciting to 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 enemies of Islam, including the (for them) unacceptable governments in the Middle East and the United States [of America]. It has been established that the network, in a series of similar activities, is currently preparing and organising of in any event two, possibly even more, and for the time being unidentified jihadists. These persons will travel to a, for the time being unknown, area where the battle is currently actually being held, with the aim of becoming a martyr. The departure of both unidentified jihadists would be imminent. It can be said in general that currently there is a clear increased activity within the network, which appears to indicate an imminent departure or other covert activities of the network in a very near future. Investigation has shown that the above network provides support to or forms a part of the Al Qaeda organisation of Osama Bin Laden. II. The activities of the network The most important activities of the network are: The recruitment of young men for effectively conducting jihad. To this end, it is propagated that it is the duty for muslims to wage jihad and are young men incited to prepare for martyrdom. The materially, financially and logistically enabling of jihadists to leave in the direction of a battle scene. The necessary funds are gathered inter alia by collecting money in mosques in various European countries, including the Netherlands. Lastly it must be noted that these activities take place in an organisational setting. Recruitment, facilitating and financing for the benefit of jihad always take place in mutual consultation and following coordination between members of this network. III. Important persons in the network In the recruitment network the following persons play a prominent role: ... 2. [the applicant] alias ... alias ... IV. The activities of the important persons in the network ... 2. [the applicant] To recruit and motivate jihad-fighters -   [the applicant] is held in high esteem amongst North-African youngster to be recruited, also by his past of mujahedin in Afghanistan. [The applicant] also indicates that one day he wishes to die as martyr for the faith. -   On 9 August 2002 [the applicant] tells ... that he is prepared to participate, that he “is ready for it”; but this has to stay very secret. -   On 20 April 2002 a meeting was held in Roermond, organised by opponents of the violent jihad. [The applicant] wants to attend this meeting together with ... with the aim of letting the attending youngsters hear an alternative sound (in casu pro-jihad). -   On or around 13 May 2002 [the applicant] asks unknown brothers in Alphen aan de Rijn whether they are prepared to leave. These brothers “do not mind going”. To organise and facilitate jihad-journeys -   [The applicant] tells on 9 August 2002 that the departing jihadists are going to buy passports (“books”) and that the price of passports depends on the duration of validity (in casu six months or longer). -   [The applicant] reports on 12 May 2002 to a person having remained unidentified that fighters are needed and that there is a new, easier route, provided one disposes of good documents. -   Together with ... [the applicant] has collected money in the Netherlands, in particular in Eindhoven, in any event by the end of 2001. The proceeds of these collection activities was several ten thousands of [Netherlands] guilders and would, according to [the applicant] and ... be for the benefit of the Taliban.” 33.     On 9 February 2005, the AIVD drew up an individual official report on the applicant, according to which he was classified as a danger for 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. 3.     The criminal proceedings against the applicant 34.     On the basis of the BVD official report of 22 April 2002 (see above § 30) and the AIVD official report of 27 August 2002 (see above § 32) 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 suspects were arrested and 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. 35.     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 is 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/AIVD. 36.     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. 37.     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. 38.     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. 4.     The proceedings on the applicant’s request for disclosure of materials underlying the AIVD individual official report of 9   February 2005 39.     Om 26 July 2005 and under article 47 of the Intelligence and Security Services Act 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 § 33). 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 would have 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. 41.     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. 42.     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 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 can 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. 43.     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. 44.     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 55 § 1 (b) in conjunction with article 15 opening words under (b), and Chapter 4 of the Intelligence and Security Services Act 2002, no information can 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 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. 45.     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. 5.     The proceedings on the decision to impose an exclusion order 46.     On 17 May 2005 the Minister of Immigration and Integration informed the applicant of the intention ( voornemen ) to impose an exclusion order on the applicant, 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 § 33) and which had been communicated to him on 11 April 2005. 47.     On 23 June 2005 and 5 August 2005, the applicant filed written comments on the intention with the Minister. He contested posing a threat for 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. 48.     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. 49.     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 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. 50.     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 §§ 26-29). 51.     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. 52.     On 30 August 2006, the Regional Court of The Hague sitting in Haarlem rejected the applicant’s request for a provisional measure. 53.     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 in connection with the applicant’s possible removal to Libya, as this measure 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 declare the applicant an undesirable alien, that it could not take into account the policy decision to install a moratorium on expulsions for Libyan asylum seekers (see below § 81) or the facts and circumstances having led to that policy decision as it had been taken after the impugned decision. 54.     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 February 2004 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 2000 Aliens Act, 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. 6.     The proceedings on the applicant’s placement in aliens’ detention 55.     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 request for compensation. On 8 August 2003, the Administrative Jurisdiction Division accepted the applicant’s appeal against the ruling of 17 June 2003. 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. 56.     On 8 November 2005, after having been notified of the decision to impose an exclusion order on him, 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 fact and the applicant’s name. As he did not hold any [travel] documents, the Aliens Police Department wished to make an appointment for presenting the applicant. 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 is responsible until the provisional-measures judge [of the Regional Court of The Hague sitting in Zwolle] would have given an ruling (see above §§ 24-29). 57.     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. B.     Relevant domestic law and practice 1.     Asylum proceedings 58.     Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act ( Vreemdelingenwet ). 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 1965 Aliens Act, unless indicated otherwise in this Act. 59.     Under article 11 of the 1965 Aliens Act, a residence permit may be issued to an alien: (a) who is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951; (b) who makes a plausible case that he or she has well-founded reasons for believing that, if expelled, he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment. 60.     On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act. 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 2000 Aliens Act. Unless indicated otherwise in the 2000 Aliens Act, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. 61.     According to the transitional rules, set out in article 11 of the 2000 Aliens Act, 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 under an application under the provisions of the 2000 Aliens Act. Because no transitional rules were set for the substantive provisions of the aliens’ law, the substantive provisions under the 2000 Aliens Act took effect immediately. However, pursuant to article 117 § 2 of the Aliens Act 2000, the procedural rules under the 1965 Aliens Act continued to apply to the processing of applications for a residence title submitted before 1 April 2001 when the 2000 Aliens Act entered into forces. 62.     One of the changes brought about under the 2000 Aliens Act was that the final decision on an asylum request is now taken by the Administrative Jurisdiction Division and no longer, as was the situation under the 1965 Aliens Act, by the Regional Court of The Hague. What remained unchanged is that 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 at the material time its administrative powers in a reasonable manner and whether this authority could reasonably have taken the impugned decision ( marginale toetsing ). 63.     Under article 29 of the 2000 Aliens Act, an alien is eligible for a residence permit for the purposes of asylum if, inter alia , - he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or - he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatmen