CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 octobre 2012

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page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sF0D62E79 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC800182F { font-family:Arial; color:#0000ff } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } THIRD SECTION DECISION Application no. 33917/12 Bède DJOKABA LAMBI LONGA against the Netherlands The European Court of Human Rights (Third Section), sitting on 9   October   2012 as a Chamber composed of:   Josep Casadevall, President,   Egbert Myjer,   Corneliu Bîrsan,   Alvina Gyulumyan,   Luis López Guerra,   Nona Tsotsoria,   Kristina Pardalos, judges, and Santiago Quesada, Section Registrar, Having regard to the above application lodged on 1 June 2012, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Bède Djokaba Lambi Longa, is a national of the Democratic Republic of the Congo, born in 1966. He is currently detained in the United Nations Detention Unit within Scheveningen Prison, The Hague, the Netherlands. He was represented before the Court by Mr   W.   Eikelboom, Mr F. Schüller and Mr G. Sluiter, lawyers practising in Amsterdam. A.     The circumstances of the case 1.     The applicant’s detention in the Democratic Republic of the Congo 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant was a prominent member of the Union of Congolese Patriots ( Union des patriotes congolais , “UPC”), a political movement created in the Ituri region of the Democratic Republic of the Congo. The UPC’s military wing, the Forces Patriotiques pour la Libération du Congo , “FPLC”) was one of the armed factions active in that area in recent years. 4.     On 19 March 2005 the applicant was arrested in Kinshasa together with other members of the UPC or the FPLC including Thomas Lubanga Dyilo, the UPC’s president and the FPLC’s commander-in-chief. 5.     It appears that the applicant was charged with participation or complicity in the murder of nine Bangladeshi members of the United Nations Organization Mission in the Democratic Republic of the Congo ( Mission de l’Organisation des Nations unies en République démocratique du Congo , “MONUC”). The applicant has consistently denied these charges. 6.     The applicant’s detention on remand was extended several times. The last detention order contained in the Court’s case file expired on 2 July 2007. The applicant states that no subsequent extension of his detention was ever authorised and that he has been detained without legal basis ever since. 2.     The applicant’s transfer into the custody of the International Criminal Court 7.     On 17 March 2006 Thomas Lubanga Dyilo was arrested under a sealed warrant of arrest of the International Criminal Court and transferred to The Hague. It was announced on 28 August 2006 that Mr Lubanga Dyilo had been charged by the Prosecutor of the International Criminal Court with enlisting, conscripting and using children under 15 years of age to participate actively in hostilities. 8.     On 27 March 2011 the applicant was transferred from detention in the Democratic Republic of the Congo into the custody of the International Criminal Court in The Hague to give evidence at Mr Lubanga Dyilo’s trial as a defence witness. It would appear that the applicant consented to this transfer. It is stated in Trial Chamber I’s decision of 5 August 2011 (see below) that the authorities of the Democratic Republic of the Congo undertook to respect the applicant’s privilege against self-incrimination. 9.     The applicant gave evidence on various dates between 30 March and 7 April 2011. 3.     Proceedings in the International Criminal Court (a)     The applicant’s submissions and argument before the Trial Chamber 10.     On 7 April 2011 the applicant lodged a request with Trial Chamber I for “special measures relating to his asylum application”. He stated that he feared reprisals upon his return to the Democratic Republic of the Congo at the hands of members of the government of that country, including President Kabila himself. He also submitted that he had health problems for which he required medical treatment that was not available in the Democratic Republic of the Congo. 11.     On 1 June 2011 the applicant lodged an asylum request with the Netherlands authorities (see below). On the same day he asked the International Criminal Court to order “special measures” pursuant to Rule   88 § 1 of the International Criminal Court’s Rules of Procedure and Evidence (see below) in the form of, as relevant to the present case, a stay of his removal to the Democratic Republic of the Congo. 12.     The Trial Chamber invited observations from the authorities of the Democratic Republic of the Congo, who asserted that they continued to detain the applicant throughout the entirety of the proceedings, having temporarily transferred only actual custody. In their view, the Convention relating to the Status of Refugees of 28 July 1951 and the Protocol thereto of 31 January 1967 did not take precedence over the Rome Statute of the International Criminal Court, particularly Article 93 thereof (see below). 13.     The Netherlands government, in observations received by the Registry of the International Criminal Court on 7 June 2011, submitted that the applicant was in the temporary custody of the International Criminal Court and thus outside the jurisdiction of the host State. However, if an application of asylum was received, the government would consider and decide on it, “whatever the result”. The host State would, however, defer to the assessment of the International Criminal Court as to whether the applicant could be returned safely to the Democratic Republic of the Congo; any safety risks identified by the International Criminal Court were to be resolved by it under its witness-protection programme. In the meantime, the applicant should remain in the care of the International Criminal Court. 14.     The International Criminal Court’s Victims and Witnesses Unit, in response to an order given by the Trial Chamber, carried out a risk assessment on the issue of protective measures for the applicant and for certain other witnesses in a different case who had raised similar concerns. This assessment included reviewing transcripts of the applicant’s testimony, evaluating the current political situation in the Democratic Republic of the Congo and meeting with the Director of the detention centre where the applicant had been held (the Makala detention centre, Kinshasa). The Victims and Witnesses Unit concluded that following his return to the Democratic Republic of the Congo the applicant would not be exposed to any additional risk to his security or psychological or physical well-being as a result of his testimony before the International Criminal Court. As to the specific fears which the applicant had expressed that his testimony about influential figures in the Congolese government put him at risk if he returned to the Democratic Republic of the Congo, the Victims and Witnesses Unit expressed the view that the applicant’s evidence did not reveal anything to the Congolese authorities of which they were not aware. Moreover, “the desire of [the applicant] to implicate the Congolese authorities, and particularly President Kabila, [was] public knowledge”. The Victims and Witnesses Unit concluded that it was unlikely that the applicant’s evidence would have an impact on politics within the Democratic Republic of the Congo such as to lead to reprisals. Moreover, assurances had been received from the Congolese authorities that the applicant would receive adequate protection, and the applicant’s safety would be sufficiently secured by continued monitoring once he had been returned to the Makala detention centre. 15.     Medical information was available from which it appeared that the applicant had received medical treatment appropriate to his condition and was fit to travel. (b)     The Trial Chamber’s decision 16.     On 4 July 2011 Trial Chamber I gave its decision. It recognised that the International Criminal Court had an obligation pursuant to Article 93 §   7   (b) of its Statute and Rule 192 § 4 of its Rules of Procedure and Evidence, as well as under Standard Operating Procedures which had been agreed between its Registry and the Democratic Republic of the Congo, to return the applicant to the Democratic Republic of the Congo once the purposes of his transfer had been fulfilled – which they were, since the applicant had finished giving his evidence. However, Article 21 § 3 of the Statute required the application and interpretation of the applicable law to be consistent with internationally recognised human rights. The Trial Chamber had therefore first to consider the implications of the applicant’s asylum claim. 17.     It was for the Netherlands authorities, not for the International Criminal Court, to consider the applicant’s asylum request. The International Criminal Court had, however, to provide a proper opportunity for the Netherlands authorities to do so and for the applicant to make his case. It was for the Netherlands authorities to decide whether it was necessary to intervene in order to take control of the applicant until such time as the asylum proceedings, and any appellate phase in those proceedings, were concluded. 18.     The Trial Chamber instructed the Registry to allow the applicant reasonable access to the lawyers representing him for the asylum request; to submit a report on the domestic procedure to be followed in order for the Netherlands to be able to discharge its obligations pursuant to the asylum request before the applicant was returned to the Democratic Republic of the Congo (unless asylum was granted); to liaise with the Congolese authorities, prior to any return of the applicant to the Democratic Republic of the Congo, in order to determine the extent of, and to implement, any protective measures that the Registry considered necessary, and report back accordingly; and to monitor the position of the applicant following his return to the Democratic Republic of the Congo. (c)     Further proceedings in the International Criminal Court 19.     On 2 August 2011 the Netherlands Ministry of Foreign Affairs submitted a note verbale informing the Trial Chamber of the need to hold interviews with the applicant and the likelihood of further investigations, as well as ensuing litigation. The note included the following: “The foregoing administrative and judicial proceedings may take considerable time and the Netherlands requires the detained witness to remain at the International Criminal Court Detention Centre throughout.” 20.     On 13 July 2011 the Netherlands government requested leave to appeal against the Trial Chamber’s decision. The Democratic Republic of the Congo submitted a document indicating that it took issue with the decision, which the Chamber decided to treat as a request for leave to appeal. On 4 August 2011 the Trial Chamber granted both requests. On an unknown later date the Appeals Chamber decided that the grant of leave to appeal to the Netherlands was ultra vires and therefore improper. 21.     In an order of 15 August 2011, the Trial Chamber reiterated that it was for the Netherlands “to decide whether, according to its national and international obligations, it [would] take control of the witness until such time as the asylum application and any appellate phase in those proceedings [were] determined”. Furthermore, “The Host State [was] urged to consider without delay whether it [intended] to defer [the applicant’s] departure from the Netherlands. The Registry [was] to consult with the Dutch authorities on the transfer of the witness into the ‘control’ of the Netherlands if the Host State [intended] to defer his departure pending its decision on the asylum application. A reasonable time frame for the transfer [was] to be arranged between the Registry and the Host State.” 22.     On 26 August 2011 the Netherlands Ministry of Foreign Affairs sent a note verbale to the International Criminal Court in the following terms: “The position of the Netherlands has consistently been that the witness [i.e., the applicant] is to remain in the custody of the Court during the asylum procedure. In this respect the Netherlands draws attention to its note verbale of 2 August 2011, in which it set out the procedure to be followed by the Netherlands to be able to discharge its obligation pursuant to the asylum request, including the administrative and judicial proceedings. Therein the Netherlands stated that it ‘requires the detained witness to remain at the [International Criminal Court] Detention Centre throughout’. The witness has been temporarily transferred in custody from the Democratic Republic of the Congo to the Court [i.e., the International Criminal Court] pursuant to an agreement between them under Article 93 § 7 of the Statute. Under this agreement the witness shall remain in custody and shall be returned to the [Democratic Republic of the Congo] when the purposes of the transfer have been fulfilled. This agreement was concluded between the [International Criminal Court] and the [Democratic Republic of the Congo] to facilitate the prosecutions undertaken by the [International Criminal Court]. The Netherlands fails to understand how an obligation to accept undocumented or illegal foreigners into its territory would follow from a bilateral agreement to which it is not a party. The Court does not have the authority under the Statute or the Headquarters Agreement to transfer the witness to the Netherlands, nor does it have the authority to impose such a transfer upon the Host State. Neither, as it was acknowledged by the [International Criminal Court], is the Netherlands obligated to accept the transfer of the witness into its control. In this regard the Netherlands would also note that under the current circumstances it lacks jurisdiction to keep the witness in custody throughout the consideration of his asylum application. Moreover, it is not the Netherlands that intends to defer the departure of the witness. The Netherlands notes that the decision reiterated the responsibility of the Court to ensure that the witness has a real – as opposed to a merely theoretical – opportunity to make his request for asylum to the Dutch authorities before his return to the Democratic Republic of the Congo. It is the understanding of the Netherlands that this responsibility implies that the Court will not undertake the transfer of the witness to the [Democratic Republic of the Congo] during the procedure pertaining to the asylum request. Consequently, the position of the Netherlands remains that the witness is to remain in the custody of the Court pending the consideration of the asylum application. Therefore, the Netherlands does not consider that there is a need to consult with the Registry of the Court at this time.” 23.     After a request by the applicant to reconsider its decision of 4 July 2011, the Trial Chamber gave an order on 1 September 2011 which included the following: “As the Host State has now informed the Chamber that it does not intend to defer the transfer of [the applicant] back to [the Democratic Republic of the Congo] and it has declined to consult with the Registry on the transfer of custody to the Host State, the Request for reconsideration of the Chamber’s Implementation Order is moot. The judges are of the view that the Chamber has provided the Registry with clear guidance, namely that deferring the departure of [the applicant] was subject to the condition that custody of the witness [i.e., the applicant] is transferred to the Host State pending the latter’s decision on the asylum application. The Chamber has discharged its obligations under Article 21 § 3 of the Statute and it is now for the Host State, to whom the asylum application is directed, to decide whether it is necessary to intervene in order to take control of the witness [i.e., the applicant] until such time as the application and any appellate phase in those proceedings are determined. It follows that the Registry should proceed with regard to [the applicant] in the way specified in Article 93 § 7 (b) of the Statute and Rule 192(4) of the Rules. ... In the event that travel is appropriate ... the Registrar should inform the Host State of the intended departure date of [the applicant] to the [Democratic Republic of the Congo]. If at any time before he finally leaves for the [Democratic Republic of the Congo] the Dutch authorities indicate that they intend to take control of the witness, the Registrar is to cooperate in the transfer of [the applicant] to the Host State.” 24.     In a decision of 15 December 2011, the Trial Chamber dismissed the applicant’s request to revoke the order for his return to the Democratic Republic of the Congo and instead order his release, conditionally if need be. It added: “The Court’s Order [of 1 September 2011] remains in force. The Chamber reiterates its instructions to the Registry to prepare for the return of [the applicant] once he is fit to travel, pursuant to Article 93 § 7 (b) of the Statute and Rule 192 § 4 of the Rules. It is for the Dutch authorities to determine whether it is necessary to intervene in order to take control of him for the purposes of conducting any extant national proceedings. Until [the applicant] returns to the [Democratic Republic of the Congo], he is to remain in detention on the basis of Article 93 § 7 (b) of the Statute, unless custody is transferred to the Dutch authorities at the latter’s request. The Chamber has no competence to review any decision by the [Democratic Republic of the Congo] to detain the witness once he has arrived back in that country, and it is to be noted that in the decision of 4 July 2011 the Chamber examined its responsibilities, based on Article 68 § 1 of the Statute, as regards the return of [the applicant] to the Democratic Republic of the Congo.” 4.     The applicant’s asylum request 25.     As already mentioned, on 1 June 2011 the applicant lodged a request for asylum with the Netherlands authorities through his lawyer, Mr   Schüller. The request stated that the applicant feared persecution if returned to the Democratic Republic of the Congo, having made statements before the International Criminal Court linking the President of that country to war crimes. 26.     On an unknown date, but in reply to a letter sent by the applicant’s representative, Mr Schüller, and dated 28 September 2011, the Immigration and Naturalisation Service ( Immigratie- en Naturalisatiedienst ) stated that since the applicant was not within the jurisdiction of the Netherlands it was not possible for him to request asylum. That being the case, his request would be treated as a request for protection ( bescherming ), to be considered in the light of the prohibition of refoulement flowing from the 1951 Convention relating to the Status of Refugees and Article 3 of the Convention; it would of course be borne in mind that the applicant was not within Netherlands jurisdiction. It was announced that the applicant would be interviewed. 5.     Proceedings in the Netherlands aimed at securing the applicant’s release (a)     Proceedings in the Regional Court 27.     Basing his argument on the premise that his detention was a measure under section 59 of the 2000 Aliens Act ( Vreemdelingenwet 2000 , see below), the applicant lodged an appeal with the Regional Court ( rechtbank ) of The Hague. 28.     The Regional Court gave its decision on 27 October 2011 following adversarial proceedings. It held that although the Netherlands was prepared to give consideration to the applicant’s request for protection and had asked the International Criminal Court to continue the applicant’s detention, the detention of the applicant had not for that reason been brought under the authority or control of the Netherlands authorities. (b)     Proceedings in the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) 29.     The applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State, which gave its decision ( Landelijk Jurisprudentie Nummer (National Jurisprudence Number) BW0617) on 22   March 2012 following adversarial proceedings. 30.     The Administrative Jurisdiction Division quoted the following from a letter of 19 October 2011 sent by the Registrar of the International Criminal Court to the Ministry of Foreign Affairs: “On the specific matter of the detained witnesses, the Registrar hereby confirms the position that the four detained witnesses, one attached to the case The Prosecutor vs. Thomas Lubanga Dyilo (ICC 01/04-10/06) [i.e., the applicant], and the remaining three attached to the case The Prosecutor vs. Germain Katanga and Mathieu Ngudjolo Chui (ICC-01/04-01/07), are currently detained under the exclusive authority of the Democratic Republic of the Congo (‘DRC’) following the requests of both Trial Chamber I and Trial Chamber II, respectively, to facilitate their viva voce testimonies at the seat of the Court, pursuant to Article 93 § 7 of the Rome Statute. These persons are currently detained under the custody of the Court, pursuant to Rule 192 § 2 of the Rules of Procedure and Evidence of the Court and to an agreement between the Congolese authorities and the Court. ... For its part, Trial Chamber I has ordered the Registry to consult also with the Dutch authorities on the transfer of the witness into the control of the Host State pending its decision on the asylum application. With this background into consideration [ sic ], the Registrar further confirms that the International Criminal Court judges have, at no stage, issued any decision requesting the Host State to assume the custody of the four detained witnesses. ...” The Administrative Jurisdiction Division’s reasoning included the following: “2.1.6.     It follows from the above that the alien [i.e., the applicant] is detained under an order of the Congolese authorities and that this detention is now taking place in a detention centre that is under the control and authority of the International Criminal Court, at the request and on the responsibility of the International Criminal Court based on Article 93 § 7 of the Statute, Rule 192 of the [International Criminal Court’s Rules of Procedure and Evidence] and the agreement concluded between the Congolese authorities and the International Criminal Court. 2.1.7.     Pursuant to Article 88 of the International Criminal Court (Implementation) Act[,] Netherlands law does not apply to deprivation of liberty undergone on the orders of the International Criminal Court in spaces within the Netherlands subject to the authority of the International Criminal Court. Already for that reason the alien’s detention cannot be based on the exercise, or presumed exercise, of any authority delegated to the Minister in the 2000 Aliens Act. The Regional Court therefore rightly held that the tribunals competent to hear cases concerning aliens [ vreemdelingenrechter ] lack the competence to consider the legality of this detention. ...” 6.     Subsequent events 31.     On 27 September 2012 the Registrar, duly authorised by the President of the Court, gave urgent notification of the present application to the Netherlands Government (Rule 40 of the Rules of Court). In reply, the Government informed the Court that on 4 September 2012 the applicant had, after consulting his lawyer, Mr Schüller, withdrawn his asylum request. Copies of the applicant’s handwritten withdrawal letter, in French, and of an official record were appended to the Government’s reply. 7.     The parallel cases of [A], [B] and [C] (a)     Asylum proceedings 32.     On 12 May 2011 three witnesses appearing in a different trial before the International Criminal Court ( The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (ICC-01/04-01/07)) lodged requests for asylum with the Netherlands authorities. As a decision was not given within the time-limit set for that purpose by law, they lodged objections against a notional refusal ( fictieve weigering ); these were declared inadmissible on 6   June 2011. They then appealed to the Regional Court of The Hague. 33.     On 28 December 2011 the Regional Court gave its decision. It dismissed the argument of the Minister for Immigration and Asylum that the 2000 Aliens Act was inapplicable to the applicants’ asylum requests. Such an argument could not be based on the Headquarters Agreement, whose Article 8 declared the laws of the Host State applicable save as otherwise provided; nor on the International Criminal Court (Implementation) Act, whose Article 88 contained a provision declaring domestic Netherlands law inapplicable to deprivation of liberty on premises under the authority of the International Criminal Court; nor on the Statute of the International Criminal Court, save in so far as the application of the 2000 Aliens Act might thwart the International Criminal Court in the exercise of its duties – which, given the International Criminal Court’s deference to the Netherlands authorities for a decision on the asylum request, in the view of the International Criminal Court itself was clearly not the case here; nor even on the 2000 Aliens Act itself or on delegated legislation based on it, given that the three witnesses were on Netherlands soil and thus could not seek the protection of any other State on whose territory they were not present, nor of the International Criminal Court, which had no territory. The Minister was accordingly ordered to give a decision on the witnesses’ asylum requests within six months. 34.     No appeal was lodged against this decision, which accordingly became final. 35.     On 11 June 2012 the Minister for Immigration and Asylum gave notice of his intention ( voornemen ) to refuse asylum to [B] and [C] on the ground that they were suspected of having committed crimes against humanity within the meaning of Article 1F of the 1951 United Nations Convention on the Status of Refugees. For health reasons, no notice was given in the case of [A]. 36.     [B] and [C] have submitted their written comments ( zienswijze ). A decision in their cases was expected in October 2012. (b)     Civil proceedings 37.     On an unknown date [A], [B] and [C] summoned the Netherlands State before the Provisional Measures Judge ( voorzieningenrechter ) of the Regional Court of The Hague, Civil Division, in summary proceedings ( kort geding ), seeking an order for the State to declare to the International Criminal Court that the State was prepared to take over the applicants from the International Criminal Court and for that purpose to enter into consultation ( overleg ) in the appropriate and usual way. 38.     The Provisional Measures Judge gave judgment on 26 September 2012. He held as follows: “3.1.     The plaintiffs [i.e., [A], [B] and [C]] have based their claim on the ground that the State is committing a tort against them [ jegens hen onrechtmatig handelt ]. That being the case, the competence of the civil courts – in the present case, the Provisional Measures Judge in summary proceedings – to take cognisance of the claim is established. The plaintiffs’ claim is also admissible, since for what they wish to achieve no other judicial remedy offering adequate guarantees is available. 3.2.     The parties differ as to whether the State is under an obligation to declare to the International Criminal Court that it is prepared to take the plaintiffs over from the International Criminal Court and enter into consultations with the International Criminal Court for that purpose. 3.3.     The State has stated in its defence that the title of the plaintiffs’ detention lies in the agreements reached between the International Criminal Court and the Democratic Republic of the Congo and that the State cannot and will not exercise jurisdiction over the plaintiffs. According to the State, the Headquarters Agreement requires it only to transport the plaintiffs across Netherlands territory at the request of the International Criminal Court. In support of its position the State has prayed in aid, inter alia , the decision of the Administrative Jurisdiction Division [of 22 March 2012, see paragraphs 29 and 30 above] and the decision of 9 June 2009 given by the European Court of Human Rights (‘the Court’) in the Galić case (no. 22617/07; Nederlandse Jurisprudentie [Netherlands Law Reports] 2010, no. 267). According to the State, the fact that the plaintiffs have lodged an asylum request does not imply either that the Netherlands is obliged to take them over from the International Criminal Court, since the lodging of an asylum request does not grant an entitlement to stay in the Netherlands if the asylum-seeker [ verzoeker ] from a legal point of view is not actually in the Netherlands [ juridisch gezien niet in Nederland verblijft ]. In the State’s view, the plaintiffs will have to await the outcome of the asylum proceedings. Only afterwards, in the State’s submission, will it need to be considered whether Article 3 constitutes an obstruction for the return of the plaintiffs to the Democratic Republic of the Congo. The State has pointed out in this connection that the asylum request is being processed with the necessary expedition and that, considering the intentions mentioned ... [see paragraph 35 above], it is likely that the asylum requests of [B] and [C] will be turned down. The State submits that in view of this situation diplomatic consultations are under way which are in a terminal phase. The Provisional Measures Judge, considering this defence, holds as follows: 3.4.     Although it is in itself correct that formally the plaintiffs are in the custody of the Democratic Republic of the Congo, implemented by the International Criminal Court, it cannot be denied, considering also the position of the International Criminal Court, that the plaintiffs are now in a dead-end (detention) situation. Since its decision of 24 August 2011 [in which the International Criminal Court orders its Registrar to enter into consultations with the Netherlands Government], the International Criminal Court considers itself bound by its Statute to return the plaintiffs to the Democratic Republic of the Congo, but the asylum proceedings, which remain pending, prevent an order for their return based on Article 93 § 7 of the Statute. Irrespective of whether – quite apart from the asylum proceedings – it is at all possible for the plaintiffs to be returned to the Democratic Republic of the Congo safely, the fact remains that also in view of the appeals that may be lodged in the asylum proceedings there is no prospect of a speedy end to those proceedings. This means that, as of 24 August 2011, the plaintiffs are no longer lawfully detained [ zich niet meer in een rechtmatige vorm van detentie bevinden ]. They have no prospect of release or trial within a reasonable time and it is unclear whether they can have the lawfulness of their detention examined by a competent jurisdiction. Neither the International Criminal Court nor the Democratic Republic of the Congo is in a position to put an end to the situation that has now emerged. 3.5.     The defence that the State has no jurisdiction over the plaintiffs cannot be followed. It can only be deduced from the decision of the Administrative Jurisdiction Division of the Council of State, which the State cites, that the detention of the plaintiffs is not based on the exercise, or presumed exercise, of powers based on the 2000 Aliens Act, which is correct. This does not make any difference to the possibility that the State may be legally bound to take over the plaintiffs from the International Criminal Court. 3.6.     Nor is the comparison with the Galić case apposite. The Court held in that case that the fact that the International Criminal Tribunal for the Former Yugoslavia (hereafter ICTY) had its seat in the Netherlands did not suffice to impute the alleged violations of the applicant’s human rights to the Netherlands. On this point, the Court held as follows: ‘In view of the above, the Court cannot find the sole fact that the ICTY has its seat and premises in The Hague sufficient ground to attribute the matters complained of to the Kingdom of the Netherlands. In arriving at that conclusion the Court has had regard to the particular context in which the question arises before it. The Court stresses that the present case involves an international tribunal established by the Security Council of the United Nations, an international organisation founded on the principle of respect for fundamental human rights, and that moreover the basic legal provisions governing that tribunal’s organisation and procedure are purposely designed to provide those indicted before it with all appropriate guarantees.’ Unlike in the Galić case, which concerned a suspect who was being tried under rules relating to an international tribunal set up by the United Nations and could make use of the (procedural) guarantees of that tribunal, the present case concerns witnesses in proceedings before another United Nations tribunal who, with regard to their detention, cannot actually make use of the guarantees of that tribunal, as is also apparent from the position taken by the International Criminal Court. In this situation it cannot be excluded that the International Criminal Court’s seat in Netherlands territory offers sufficient links to assume that the Netherlands has jurisdiction. 3.7.     The above applies in particular given that it is because of the Netherlands asylum proceedings that the plaintiffs cannot be returned to the Democratic Republic of the Congo. It may well be that the asylum requests subvert [ doorkruisen ] the system provided under international law, but as it is, the State is obliged on the ground of the decision of this court (sitting in Amsterdam) [of 28 December 2011, see paragraph 33 above] – against which it has not appealed – to consider the plaintiffs’ asylum requests. The plaintiffs cannot be blamed for lodging asylum requests. 3.8.     Leaving aside the correctness of the defence that an asylum request lodged by persons who are not within (the jurisdiction of) the Netherlands does not create a right to stay in the Netherlands, it remains the case that the State must concern itself with the fate of the plaintiffs and may not leave them in the custody of the International Criminal Court pending the asylum procedures being processed in accordance with the 2000 Aliens Act, the end of which is not yet in sight. The State must therefore enter into consultations with the International Criminal Court to put an end to the unlawful detention of the plaintiffs. 3.9.     It follows from the above that the plaintiffs’ claim will be allowed in the following way. The time-limit within which the State must enter into consultations with the International Criminal Court shall be four weeks, to enable the State to make adequate preparations. To the extent that the State fears that the plaintiffs will, after their claim has been allowed, abscond into illegality [ in de illegaliteit zullen verdwijnen ], it is its responsibility to take appropriate preventive measures.” 39.     It is not yet known whether the State has lodged an appeal against this judgment. B.     Relevant domestic law 40.     Provisions of domestic law relevant to the case are the following. 1.     The Constitution of the Kingdom of the Netherlands ( Grondwet voor het Koninkrijk der Nederlanden ) Article 93 “Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.” Article 94 “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions.” 2.     The General Administrative Law Act ( Algemene wet bestuursrecht ) Article 8.1 “1.     Any interested party [ belanghebbende ] can lodge an appeal against an administrative decision [ besluit ] with the Regional Court. ...” 3.     The 2000 Aliens Act Article 59 “1.     If necessary in the interests of public order or national security, [the competent Minister] may, for the purpose of expulsion [ uitzetting ], order the detention of an alien who: (a)     is not lawfully resident; ...” Article 93 “1.     ... [A] measure taken in pursuance of Chapter 5 of this Act [including Article   59] purporting to restrict or deprive someone of their liberty shall, for the purpose of applying Article 8.1 of the General Administrative Law Act, be equated with an administrative decision. ...” 4.     The International Criminal Court (Implementation) Act ( Uitvoeringswet Internationaal Strafhof ) Article 45 “1.     The International Criminal Court’s requests for cooperation in whatever form, as referred to in Article 93 of its Statute, shall be complied with as desired, as far as possible ...” Article 85 “... 2.     Transit of persons [i.e., other than suspects] who have been transferred, or who have come, to the Netherlands at the request of the International Criminal Court shall take place on the instructions [ in opdracht ] of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice ( Minister van Justitie )]. 3.     Transport of persons outside the spaces subject to the authority of the International Criminal Court [ buiten de onder het gezag van het Strafhof staande ruimten ] of persons who have been deprived of their liberty on the orders of the International Criminal Court shall take place on the instructions of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice]. 4.     The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape.” Article 86 “1.     Transit of persons who are to be handed over to the authorities of a foreign State by the International Criminal Court shall take place on the instructions of the International Criminal Court by and under guard of Netherlands officials appointed by the Minister [of Justice]. 2.     The officials referred to in this Article shall be authorised to take whatever measures they see fit to ensure the safety of the persons concerned and to prevent their escape.” Article 87 “1.     If witnesses, experts, victims or other persons whose presence is required at the seat of the International Criminal Court, of whatever nationality, come to the Netherlands pursuant to a subpoena or summons [ dagvaarding of oproeping ] or an arrest warrant issued by the International Criminal Court or in response to a request for admission made by the International Criminal Court to the Netherlands ..., they shall not be subject to prosecution, arrest or any other measure limiting their freedom in respect of facts or convictions preceding their arrival in the Netherlands. 2.     The immunity referred to in the first paragraph shall be lost if the person in question, having had the possibility of leaving the Netherlands for fifteen consecutive days from the moment on which his presence was no longer required by the International Criminal Court, has remained in the country or has returned to it after having left.” Article 88 “Netherlands law shall not apply to deprivation of liberty undergone on the orders of the International Criminal Court in spaces within the Netherlands subject to the authority of the International Criminal Court.” C.     Relevant international law relating to the International Criminal Court 41.     In this section, the expression “Court” refers to the International Criminal Court. 1.     Rome Statute of the International Criminal Court Article 3 Seat of the Court “1.     The seat of the Court shall be established at The Hague in the Netherlands (‘the host State’). 2.     The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3.     The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.” Article 4 Legal status and powers of the Court “1.     The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2.     The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.” Article 21 Applicable law “1.     The Court shall apply: (a)     In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b)     In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c)     Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2.     The Court may apply principles and rules of law as interpreted in its previous decisions. 3.     The application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” Article 43 The Registry “... 6.     The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. ...” Article 68 Protection of the victims and witnesses and their participation in the proceedings “1.     The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in Article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violenc