CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 mai 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s952C702C { margin-top:60pt; margin-bottom:14pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s39E5096F { margin-top:0pt; margin-bottom:14pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s88D564B { margin-top:0pt; margin-bottom:0pt; text-align:justify; border:0.75pt solid #000000; padding:1pt 4pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s28F0D84C { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s3A56B7FD { margin-top:0pt; margin-left:4.25pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sDD998142 { margin-top:14pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC2E086EB { width:36.89pt; display:inline-block } .s871A718A { width:136.42pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     THIRD SECTION CASE OF AZZAQUI v. THE NETHERLANDS (Application no. 8757/20)     JUDGMENT   Art 8 • Expulsion • Private life • Revocation of residence permit of long-term settled migrant with mental illness and imposition of ten-year entry ban on account of violent offences, despite progress after years of confinement in custodial clinic • No consideration given to applicant’s reduced criminal culpability due to mental illness • Failure to take into account properly and balance interests at stake and all relevant factors   STRASBOURG 30 May 2023   FINAL   30/08/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Azzaqui v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Yonko Grozev,   Georgios A. Serghides,   Peeter Roosma,   Andreas Zünd,   Oddný Mjöll Arnardóttir , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   8757/20) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moroccan national, Mr Karim Azzaqui (“the applicant”), on 10   February 2020; the decision to give notice to the Government of the Kingdom of the Netherlands (“the Government”) of the complaint concerning Article 8 of the Convention and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 9 May 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the revocation of a residence permit of, and imposition of an entry ban on, a person who had suffered a mental disorder which had reduced his criminal culpability at the moment when he had committed a serious offence. The applicant argues that his personal circumstances have insufficiently been taken into account when balancing the interests at stake. THE FACTS 2.     The applicant is a Moroccan national born in 1972. He was represented by Mr C.F. Wassenaar, a lawyer practising in Rotterdam. 3.     The Government were represented by their Agent, Ms B.   Koopman, of the Ministry of Foreign Affairs. THE CIRCUMSTANCES OF THE CASE 4.     The facts of the case may be summarised as follows. 5.     The applicant was born in Morocco and entered the Netherlands in 1982. In the same year the Dutch authorities granted him a residence permit to live with his father. In May 1991 he obtained a permit for permanent residence ( vergunning tot vestiging ). 6 .     Between 1987 and 1996, the applicant was convicted of multiple crimes, including (attempted) theft, burglary, extortion, threats and robbery, and sentenced to several terms of imprisonment. 7 .     On 24 September 1996 a full-bench chamber ( meervoudige kamer ) of the Arnhem Regional Court ( rechtbank ) convicted the applicant of rape, sentenced him to two years’ imprisonment and imposed an order for his placement at the disposal of the Government with confinement in a custodial clinic ( terbeschikkingstelling met bevel tot verpleging van overheidswege , “TBS order”). The relevant parts of the judgment read as follows: “A report concerning the accused was prepared on a multidisciplinary basis by [O.], a psychiatrist, and [A.], a psychologist, dated 8 August 1996, in which both authors concluded that at the time of the commission of the offence with which he was charged, the [applicant] had been able to see its impermissibility, but would have been able to freely determine his will in accordance with such awareness to a lesser extent than the average person. At the time of the commission of the offence the [applicant] was suffering from a defective development of his mental faculties to such an extent that the offence can only be attributed to him to a reduced extent. The court adopts that conclusion and makes it its own. In the light of that conclusion, it cannot be said that the accused is not criminally liable. Circumstances which would remove or exclude his criminal liability have not become apparent ... [O.], the psychiatrist, and [A.], the psychologist, advised as follows: The [applicant] has a personality disorder with schizotypal and antisocial traits and episodic psychotic experiences, and has been exposed to long-term and severe (hard) drug use. The [applicant’s] behaviour remains highly unpredictable. The nature and severity of the psychiatric problems, that is, a personality disorder and psychotic experiences focused on the offences with which he is charged – ‘the fight’ between the need for contact with women and the inability to initiate contact, given the (schizotypal) nature of the problems – contribute to this. Therefore, in the expert’s view, there is a significant risk of reoffending, not least due to the [applicant’s] impaired judgment and criticism disorder. On the basis of these findings, the recommendation is given to impose [a TBS order]. The court is of the opinion that general safety of persons specifically requires the imposition of [a TBS order].” 8.     The TBS order was extended in January 2000, June 2001, June   2002, June 2004, June 2006, May 2008, July 2010, July 2011, June   2012, August   2013, July 2014 and June 2015. 9 .     In the proceedings concerning another extension of the TBS order, the behavioural experts from the applicant’s treatment facility drew up a report on 11 April 2016 in which they reported that the applicant had shown consistent good behaviour while on permitted leave, remorse for what he had done to the victim and a willingness to be helped and to do well. He had not broken any rules or withdrawn from treatment or guidance. Although the applicant would never be able to function independently because of a permanent lack of coping and judgment skills, he had displayed no signs of sexual deviancy and it was estimated that the risk of reoffending could be kept permanently low in an assisted living facility. They described the aims of the resocialisation plan as follows: “The [applicant] will continue to need ongoing support, guidance and monitoring in the future to keep the risk manageable in the long term. A protective environment appropriate to his abilities and limitations, [and] the taking of medication, are important factors to prevent reoffending. The [applicant] has come to live at the De Nieuwstad facility in Zutphen. The aim is to continue his resocialisation here within a residential setting for people with a mental disability. Here, conditions can be created where the person concerned can function properly and in a permanently safe manner (living, working, spending leisure time).” With the foregoing in mind, they advised the court to extend the TBS order with one year and to conditionally release ( voorwaardelijke beëindiging ) the applicant from confinement in the custodial clinic in order to assess whether he would also function well under the supervision of the probation services ( reclassering ). 10 .     On 27 May 2016 the criminal division of the Gelderland Regional Court – referring to the April 2016 report – extended the TBS order for one year and granted conditional release from confinement in a custodial clinic. The conditions included, amongst others, that the applicant would not commit a criminal offence, that he would remain in the country, that he would put himself under the supervision of the probation services and adhere to all their regulations and instructions, that he would live in an assisted living facility and that he would not use drugs or alcohol. 11 .     On 10 February 2017, referring to the applicant’s criminal record, the Deputy Minister of Justice and Security (“the Deputy Minister”) informed the applicant of his intention ( voornemen ) to revoke his residence permit and to impose an entry ban on the grounds that he posed a threat to public order ( gevaar voor de openbare orde ). 12 .     The applicant submitted written comments ( zienswijze ) in response to the Deputy Minister’s intention. Relying, inter alia , on the report by the treatment facility (see paragraph 9 above) and on Article   8 of the Convention, the applicant objected to the revocation of his residence permit and the imposition of an entry ban. 13 .     In the proceedings concerning another extension of the TBS order, the probation services, on 23 March 2017, reported that the Deputy Minister’s intention to revoke the residence permit had severely disturbed the applicant and that he had not been prepared for returning to Morocco. He had immediately violated the terms of his conditional release from confinement in the clinic by smoking marijuana and drinking alcohol. They advised extending the TBS order for two years, during which time they would draw up a plan to prepare the applicant for returning to Morocco. 14 .     On 21 July 2017 the criminal division of the Gelderland Regional Court decided to extend the TBS order for one year. The court considered, inter alia : “[I]t appears from ... the probation services’ report [of 23 March 2017; see paragraph   13 above] that under the current circumstances, in which the [Deputy Minister’s] intention to revoke the [applicant’s] residence permit plays a role in particular, there is a risk of recidivism that justifies the extension of the TBS order.” 15.     On 24 July 2017 the applicant’s lawyer sent a copy of that judgment to the Deputy Minister to be appended to his written comments (see paragraph   12 above). 16 .     On 19 January 2018 the Deputy Minister revoked the applicant’s residence permit and imposed a ten-year entry ban on him. On Article   8 of the Convention, he considered the following. The applicant’s ties with his adult family members in the Netherlands did not fall within the scope of Article 8. As regards the right to respect for private life, the Deputy Minister balanced the interests involved, referring to the Court’s case-law as set out in Boultif v.   Switzerland (no. 54273/00, ECHR 2001 ‑ IX), and Üner v.   the   Netherlands ([GC], no. 46410/99, ECHR 2006-XII), and considered that the applicant’s private life rights did not outweigh the interests of the general public. In that context the Deputy Minister noted that there was no evidence of the applicant’s having any strong social ties to the Netherlands, that the applicant had not shown respect for or made any positive contributions to Dutch society, and that treatment in the context of the TBS order did not constitute private life within the meaning of Article 8 of the Convention but was rather a measure imposed in the context of criminal proceedings. The instant case was therefore not comparable to Ciliz v.   the   Netherlands (no.   29192/95, ECHR 2000-VIII). The Deputy Minister acknowledged that the applicant had been living in the Netherlands for a long time, but that was outweighed by the seriousness of the multiple crimes he had committed and the extensions of the TBS order. He further noted that the threat to public order stemming from the applicant’s offences had not diminished, because up until now the TBS order had consistently been extended and the applicant had not shown any positive progress outside a clinical setting. In addition, from the psychological reports prepared in the context of the TBS order extension proceedings, it appeared that the applicant would always be in need of supervision, and his relapse into alcohol and drug use showed that he could not cope with setbacks. The applicant’s contention that the TBS order had only been extended because of the intention to revoke the applicant’s residence permit, was contested. That order was extended because of a risk of recidivism; the cause of that risk was irrelevant. Although a long time had elapsed before the Deputy Minister had decided to revoke the residence permit and impose an entry ban, that had given the applicant an opportunity to obtain the treatment needed to reintegrate into society. The applicant could not have derived any expectations or rights from that lapse of time. As to his return to Morocco, the Deputy Minister considered that the applicant was an adult male who could be expected to fend for himself after assisted repatriation. 17.     The applicant lodged an objection ( bezwaar ) on 13 February 2018. In the grounds of objection submitted at a later date, the applicant referred to the contents of the expert reports drawn up on 14 February 2018 and 23 March 2018 (see paragraphs 20 and 21 below). 18 .     On 13 April 2018 the Deputy Minister declared inadmissible the applicant’s objection. According to the Deputy Minister, the applicant had not put forward any arguments that warranted reconsideration of the decision of 19   January 2018. As to repatriation to Morocco, he added that the applicant could either speak the local language or should be able to pick it up, that the applicant had family in Morocco with whom he had stayed in contact, and that he would be prepared for his return by the clinic. 19.     The applicant appealed on the same day and, inter alia , reiterated that the decision to revoke his residence permit had not been in compliance with Article 8 of the Convention. He stated that during his stay in the Netherlands he had developed ties amounting to private life, including while he had been in detention and when subject to the TBS order. He argued that with thirty ‑ five years of lawful residence he was a “settled migrant” for whose expulsion “very serious reasons” were needed (alluding to Maslov v. Austria [GC], no.   1638/03, § 75, ECHR 2008). According to the applicant, the application of the guiding principles from Üner and Boultif (both cited above) should have led to a balance being struck in his favour. In that context he put forward, amongst other things, that he had not reoffended, and that the TBS order had forced the applicant to stay in the Netherlands, during which time the Deputy Minister had failed to take any action with a view to his expulsion but had instead renewed his residence permit. In addition, he argued that the revocation of his residence permit interfered with the aims of the TBS order, which had been his resocialisation in the Netherlands. 20 .     On 6 July 2018 the criminal division of the Gelderland Regional Court extended the TBS order for one year. In its judgment (ECLI:NL:RBGEL:2018:2980) the court cited the following passage from a report which had been drawn up by an independent forensic psychiatrist on 14   February 2018: “If [the applicant] could stay in the Netherlands, the TBS order would no longer be necessary. Deportation from the Netherlands has such a destabilising effect on him that it increases the likelihood of his reoffending. The TBS order is then needed to prepare a course for deportation with him and to arrange conditions as much as possible.” 21 .     The court also cited the following from a report which had been drawn up by the probation services on 23 March 2018: “Since he was informed of the [Deputy Minister’s intention to revoke his residence permit], the applicant has not been doing well ... The [applicant] absolutely cannot cope with this complex situation and he lacks the skills to deal with it. He needs [the assisted living facility’s] guidance and support precisely to deal with this situation. If the TBS order were terminated, the [applicant] would lose his right to stay in the Netherlands; in fact, he could be deported immediately and would not be allowed to return for the next ten years. We have been in contact with the Veldzicht Centre for Transcultural Psychiatry. They indicate that Morocco is not eager to have the [applicant] either, given his criminal and psychiatric background, and that [the Moroccan authorities] will do everything possible to stop [his return]. There is a good chance that the [applicant] will fall between two stools and end up on the streets. It should be clear that it is to be expected that the [applicant] will not be able to cope and will start committing crimes to get money. His family is a supportive/protective factor. When this [factor] disappears because the [applicant] must be deported, the risks [of reoffending] will increase. The undersigned consider it necessary to extend the TBS order to support the [applicant] during this uncertain time and thus ensure that conditions remain as optimal as possible for him, with the lowest possible risk of reoffending.” 22 .     The judgment further contained the following considerations: “The court faces a dilemma in the present case. The reports show that, in principle, the [applicant’s] risk of reoffending has been reduced to a sufficiently acceptable level so that his treatment could take place outside a clinic on a voluntary basis. This is the result, particularly, of the guidance and support he now receives from the probation services and the residential facility, and of the medication which he takes conscientiously. This means that, strictly speaking, the measure of placement is no longer necessary. He could, while continuing to benefit from this guidance on a voluntary basis, hold his own in Dutch society without relapsing into delinquent behaviour. However, the uncertainty about his right of residence in the Netherlands as a result of the removal procedure initiated by the [Deputy Minister] changes the situation. This uncertain situation causes so much tension for the [applicant] that he balances on the edge of a psychosis every time he is triggered by – in particular – information about the deportation proceedings. In addition, the prospect of losing his right of residence entails a high risk of decompensation for the [applicant]. Two scenarios are possible if his residence permit is revoked. 1. If he were forced to return to Morocco, he would not be given any reception, treatment or medication there. He came to the Netherlands in 1982, at the age of 10, and has not returned since. His entire family lives here. In Morocco, he will have to live on the streets and, given his problems and the lack of (medicinal) treatment, shelter and supervision, will inevitably relapse into seriously dangerous behaviour. 2. If he cannot be deported, for instance because of a lack of cooperation by the Moroccan authorities, as outlined in the probation services’ report, his illegal residence status means he no longer has any entitlement to continued (medicinal) treatment and counselling, no housing provision, no work or daytime activities and no financial security. Even then, the threat of psychological decompensation remains, and the risk of seriously disordered and dysregulated behaviour will rapidly increase, with all the dangers to the [general public safety] that that entails. In this case (and previously in similar TBS order cases) the court finds itself confronted with an apparent paradox in Dutch policy when it comes to the interpretation of the notion of [general public safety], the safeguarding of which is the primary aim of a TBS order. In that context, [general public safety] is not limited to society in the Netherlands ... At present, this understanding [of general public safety] is commonplace when considering whether to impose or extend a TBS order ... In view of the foregoing, the court has no choice but to extend the TBS order, in accordance with the opinion expressed by the parties to these proceedings and the experts, and pending the decision of the court in the ongoing proceedings concerning [the revocation of] the [applicant’s] residence permit. This is despite the fact that, according to the experts, continuation of the measure would not be necessary under normal circumstances because the risk of reoffending has diminished sufficiently.” 23 .     The applicant sent a copy of that judgment to the Regional Court of The Hague, sitting in Arnhem, to be joined to his appeal in the proceedings concerning the revocation of his residence permit. 24 .     On 6 November 2018 the administrative division of the Regional Court of The Hague, sitting in Arnhem, declared inadmissible the applicant’s appeal in the revocation proceedings and dismissed his appeal against the entry ban. The relevant parts of the judgment read as follows: “8.2     The court finds that the [Deputy Minister] has properly reasoned his view that the [applicant] is currently a threat to public order. The [applicant] has been sentenced several times to imprisonment for committing serious crimes. At the time of the contested decision, he was still under supervision as part of the conditional termination of the [TBS order]. The probation services’ recommendation of 23 March [2017; see paragraph 13 above] to extend the TBS order stated that after receiving the notice of intent to revoke his residence permit, the [applicant] used drugs to regulate tension, after which it was decided to admit the [applicant] to a clinic. It appears from that advice that on [the Friday before] 13 March 2017, the [applicant] drank beer despite the terms of the [treatment] agreement because he felt bad about the possible entry ban and hoped that a few beers would make him feel better. The [Deputy Minister] did not err in inferring from this advice that there was a risk of the [applicant] relapsing into substance abuse in the event of adverse life events. Contrary to the [applicant]’s contention, the 23 March 2018 report [see paragraph 21 above] does not paint a different picture. That report states that without counselling he might easily fall back into substance use, that his transgressive behaviour is linked to his living conditions, and that the risk of repetition of property-related and sexual crimes is high if the [applicant] finds himself in unfavourable living conditions. The court finds that it does not appear from the report that a foreseeable relapse will only occur as a result of decisions in respect of [the applicant’s] right of residence in the Netherlands, and that the risk would therefore be eliminated in the event of a waiver of the revocation of [the applicant’s] right of residence. [The Deputy Minister] has further correctly argued that the fact that the [applicant] did not offend again after 1995, that he has made progress in his treatment and that the TBS order has been conditionally terminated, cannot be given the weight that the [applicant] wants it to be given. Indeed, the [Deputy Minister] has duly reasoned that there is still a risk of reoffending and that no positive change in behaviour has occurred without external help, so that this does not detract from the actuality ( actualiteit ) of the threat ... 10.     The [applicant] argued that the revocation of the residence permit and the imposition of the entry ban violated the right to private life enshrined in Article 8 of the ECHR. The [applicant] pointed out that he had been living in the Netherlands since 1982, was educated and fully integrated and had immediate family members living in the Netherlands. In the view of the [applicant], he should be classified as a ‘settled migrant’ whose stay can only be terminated in exceptional circumstances, given his long period of residence. Moreover, according to [the applicant], it appears from the probation services’ recommendation to extend [the TBS order] that the risk of recidivism is moderate and that during his treatment and leave weekends he has shown an improvement in his behaviour. Finally, the [applicant] argues that there are subjective obstacles to returning to Morocco. 10.1.     From the case-law of the European Court of Human Rights ..., for example ... Rodrigues da Silva and Hoogkamer v. the Netherlands [no. 50435/99, ECHR 2006-I] ..., and that of the [Administrative Jurisdiction] Division [of the Council of State] of 13   July   2009 (ECLI:NL:RVS:2009:BJ7527), it follows that the [Deputy Minister], in balancing the competing interests in the context of the right to respect for private life, must strike a ‘fair balance’ between the interests of the foreign national, on the one hand, and the general interest of the Netherlands, which is served by pursuing a restrictive immigration policy, on the other. In doing so, he must consider all the facts and circumstances relevant to this balancing of interests. The court must assess, if requested, whether the [Deputy Minister] included all relevant facts and circumstances in that balancing of interests and, if so, whether the [Deputy Minister] did not make an error of assessment by concluding that his balancing of interests had resulted in a fair balance being achieved between, on the one hand, the interest of an alien in the exercise of his private life in the Netherlands and, on the other, the general interest of Dutch society in pursuing a restrictive immigration policy. 10.2.     In the context of the right to respect for private life, the [Deputy Minister] weighed the relevant individual interests of the [applicant] against the general interest. In that regard, the [Deputy Minister] took into account the fact that the [applicant] came to the Netherlands at the age of 10, had lived in the Netherlands for a very long time, had been educated there and had built up social ties with the Netherlands, but considered that this did not outweigh the fact that the [applicant] had been repeatedly convicted of committing (very serious) crimes. Although the [applicant] has resided in the Netherlands for a long time, the [Deputy Minister] having never taken steps to revoke the [applicant]’s residence permit on grounds of public order, and new residence cards have consistently been issued to him, the [Deputy Minister] did not make an error of assessment in giving decisive weight to the serious crimes repeatedly committed [by the applicant]. The [Deputy Minister] was not wrong to reject the [applicant]’s argument that, in view of the passage of time since his last offence, there were no longer any very serious reasons to end his residence in the Netherlands. In this context, it is important to note that the TBS order imposed on the [applicant] has been consistently extended on the basis that [the applicant] continues to pose a threat to public order. Although it can be concluded that the [applicant] has developed positively, it appears from the probation services’ advice which formed the basis for the last extension of the TBS order that there is a moderate to high risk [of reoffending] and that the risk of reoffending will increase without supervision. In addition, the [Deputy Minister] was not wrong to take into account the fact that the [applicant] had used drugs and alcohol, contrary to his [treatment] agreements. It was also permissible for the [Deputy Minister] to take into account the fact that the [applicant] had spent a large part of his stay [in the Netherlands] in detention and treatment clinics. While it is true that an alien builds up a private life during such a stay, which the court understands the [Deputy Minister] does not deny, it is not incorrect for the [Deputy Minister] to attach less weight to such a private life ... than to a private life built up in freedom. The ties with society [built up during such a stay] are, after all, less intensive. The [Deputy Minister] also does not deny that the [applicant] has ties with the Netherlands and his family members residing in the Netherlands, but there is no evidence of strong social ties with the Netherlands. Furthermore, the [Deputy Minister] did not make an error of assessment by concluding that the [applicant] should be considered able to fend for himself in Morocco. Indeed, during the hearing before the official committee, the [applicant] indicated that he had family members still living in Morocco with whom he was still in contact. In addition, the [applicant] is an adult male and can be expected to make his own way in the context of repatriation to Morocco. The [applicant] has not made a sufficiently plausible claim that he will encounter insurmountable problems when returning to Morocco. In this regard, the [Deputy Minister] rightly pointed out that as part of his inpatient treatment the [applicant] will be prepared for, and assisted in, returning to Morocco and that adequate assistance will be sought in his country of origin. 10.3.     In view of the above, the [Deputy Minister] has included all the facts and circumstances put forward by the [applicant] in the balancing of interests and was not incorrect in taking the position that the balancing of interests ended up to [the applicant’s] detriment. The judgments cited by the [applicant] in the context of Article   8 of the ECHR do not lead to a different outcome, as they are not comparable to the case at hand.” 25 .     The applicant’s further appeal against the Regional Court’s judgment of 6 November 2018 was rejected by the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State ( Raad van State) on 13   August   2019 with summary reasoning. No further appeal lay against that judgment. Subsequent DEVELOPMENTS 26.     On 1 March 2019 the Gelderland Regional Court, criminal division, ordered the applicant’s resumed confinement in a custodial clinic. The TBS order was subsequently extended on 29 November 2019 and 8 October 2021. 27 .     On 17 June 2022 the Gelderland Regional Court again extended the applicant’s TBS order for one year. In its judgment (ECLI:NL:RBGEL:2022:3438) that court considered, inter alia , (footnotes omitted): “First of all, the court notes that the situation in which the person concerned finds himself as a result of the entry ban and revocation of his residence permit seems to have become quite hopeless. The legal frameworks concerning the residence permit and the TBS order do not fit well together, as a result of which a seemingly unbreakable status quo has in fact been reached. Deportation or repatriation of [the applicant] hardly seems feasible and at the same time the treatment or resocialisation of [the applicant] is stagnating because of the loss of his residence permit. The guidance and treatment that can be offered in Morocco seem, as things stand, to be a very diluted version of what [the applicant] needs. This seems to have created a situation where the TBS order is in fact protecting [the applicant] rather than protecting society from [the applicant]. Judicial review is primarily aimed at ensuring compliance with applicable regulations, but it is also the court’s role to point out incompatibilities between different legal frameworks and the court does so again, as it did last year ... The court does want to stand up for ( lans breken ) extending [the applicant’s] leave to transmural leave. The considered reports show that from a treatment and resocialisation point of view, this is clearly possible. Only the [the applicant’s] residence status stands in the way of this. However, this need not always be an insurmountable obstacle; it mainly comes down to the willingness of institutions to provide tailor-made solutions in order to break the impasse that has been created primarily by the regulations and the policy of the Minister [of Justice and Security]. In the court’s view, from a human perspective the factors of treatment and resocialisation, at least to a certain extent such as through transmural leave, should be decisive in the process of balancing the various interests. Owing to the revocation of [the applicant’s] residence permit, the TBS order has in fact become a punishment with hardly any prospect of change, such that a violation of Article 5 of the Convention comes closer with every subsequent extension of it. Gradually increasing transmural leave may bring about the desired change, at least in part.” RELEVANT LEGAL FRAMEWORK AND PRACTICE REVOCATION OF A RESIDENCE PERMIT OF INDEFINITE DURATION AND IMPOSITION OF AN ENTRY BAN 28 .     The minister responsible may revoke a residence permit of indefinite duration on grounds of public order if the holder has been convicted by a final court judgment of a crime ( misdrijf ) that is punishable by a custodial sentence of three years’ imprisonment or more or has been placed at the disposal of the Government (section 20(1)(b) read in conjunction with section 22(2)(c) of the Aliens Act 2000 – Vreemdelingenwet 2000 ), and if the revocation is in keeping with the “sliding scale” principle (section 3.98 read in conjunction with section 3.86 of the Aliens Decree   2000 – Vreemdelingenbesluit 2000 ; on this principle, see further Aze rkane v. the Netherlands , no. 3138/16, §§ 37 ‑ 38, 2 June 2020). 29.     A non-asylum-based residence permit of indefinite duration cannot be revoked if removal of the alien would be contrary to Article 8 of the Convention (section 3.86(17) of the Aliens Decree 2000). 30 .     Where an entry ban is imposed on an alien who constitutes a serious threat to public order, public security or national security, its maximum length is ten years (section 66a(4) of the Aliens Act 2000). Evidence of such a threat includes a conviction for an offence punishable by a custodial sentence of more than six years’ imprisonment or the fact that a TBS order has been imposed (section 6.5a(5) of the Aliens Decree 2000). IMPOSITION AND EXTENSION OF A TBS ORDER 31.     The relevant provisions of the Criminal Code ( Wetboek van Strafrecht ) concerning the imposition and the extension of a TBS order provide as follows: Article 37a “1. If it is necessary in the interests of the safety of others or the general safety of persons or goods, a suspect may be ordered to be placed at the disposal of the Government if the court finds that: 1º the mental faculties of the suspect were inadequately developed or pathologically disturbed at the time of the commission of the offence; and 2º the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, ... 2. ... 3. The court shall give an order as referred to in the first paragraph only after it has ordered the submission of a reasoned, dated and signed advisory opinion of at least two behavioural experts of different disciplines – one of whom shall be a psychiatrist – who have examined the person concerned ... 4. ... 5. In giving an order under paragraph 1, the court shall take account of the statements contained in the other opinions and reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences. 6. ...” Article 37b “1. The court may order that a person who is placed at the disposal of the Government shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods. 2. ...” Article 38e “1. The total duration of the placement at the disposal of the Government with confinement in a custodial clinic shall not exceed a four-year period, unless the placement at the disposal of the Government with confinement in a custodial clinic is imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons. 2. ... 3. If the total duration of the placement at the disposal of the Government is not limited in time, the duration of the placement at the disposal of the Government can be extended periodically, if the safety of others or the general safety of persons requires such extension.” Article 38j “In case of conditional release from confinement in a custodial clinic, the placement at the disposal of the Government can be extended for one year or two years at a time.” RELEVANT DOMESTIC CASE-LAW 32 .     On 17 August 2022 the administrative division of the Regional Court of The Hague, sitting in Amsterdam, gave judgment (ECLI:NL:RBDHA:2022:11298) in a case concerning an alien whose residence permit had been revoked by the Deputy Minister following several criminal convictions and the imposition of a TBS order. In so far as relevant for the present case, the court found as follows: “5.7.     [T]he court finds that the [Deputy Minister] did not include all relevant facts and circumstances in the balancing of interests in a sufficiently clear manner. It does not appear that when assessing the nature and seriousness of the crimes committed by the [alien], the [Deputy Minister] took into account the fact that the [alien] has a reduced degree of responsibility for the offences charged against him due to a pathological disturbance of the mental faculties. However, the European Court of Human Rights held in Savran v. Denmark [GC], no. 57467/15, 7 December 2021 that in as sessing the nature and gravity of the offence, it must be considered whether the person concerned was suffering from a serious mental disorder at the time the offences were committed and that less weight can be given to this criterion if it is established that the offence cannot be attributed to the person concerned. Although this ruling refers to the situation where the offence cannot be attributed to the person concerned at all, the court considers that this is a relevant fact also in the case of reduced imputability that must be taken into account in the assessment of the nature and seriousness of the offence and in weighing this [criterion]. In this regard, the court also refers to the [Deputy Minister] Working Instruction ( werkinstructie ) no. 2020/16, which states that when assessing the nature and seriousness of the offence account is taken of the circumstances under which the offence was committed, and that the judgment generally provides insight in this regard. In brief, by considering that the personal circumstances put forward by the [alien] relate to his person and not to the nature and seriousness of the committed crime ... the [Deputy Minister] did not sufficiently address the circumstances under which the [alien] committed the crimes ...” In view of, inter alia , the foregoing, the court found that the Deputy Minister had failed to consider all relevant facts and circumstances in the balancing of interests. It upheld the alien’s appeal, quashed the impugned decision and ordered the Deputy Minister to make a fresh decision. It is unknown whether the Deputy Minister lodged a further appeal against this judgment. 33.     On 27 March 2023 the administrative division of the Regional Court of The Hague, sitting in Groningen, gave judgment (ECLI:NL:RBDHA:2023:4036) in another revocation of residence permit case. In so far as relevant for the present case, the court found as follows: “The court finds that the [Deputy Minister] has given sufficient reasons that the balancing of interests was to the detriment of the [alien]. The [Deputy Minister] took into account the ... guiding principles [from Boultif and Üner , both cited above]. In the contested decision, under the criterion of the nature and seriousness of the offence, it was not explicitly stated that the [alien] was deemed to have diminished criminal responsibility, but in the contested decision the [Deputy Minister] ... weighed the [alien’s] personal conduct and included [his] diminished culpability in this connection. In the statement of defence and at the hearing, the [Deputy Minister] elaborated on this, namely that the [alien’s] mental disorder did not detract from the seriousness of the crimes committed by [him], because [his] criminal responsibility was not fully excluded. The starting point, according to the [Deputy Minister], is that the [alien] does have a certain degree of culpability for having committed the offences, despite his drug use and his disorder. The [Deputy Minister] rightly took into account in this context that the [alien] had been sentenced by the criminal court to a prison sentence and [a TBS order]. The court therefore follows neither the [alien’s] argument that the balancing of interests was insufficiently evidently reasoned, nor his reliance on the judgment of the Regional Court of 17 August 2022 [see paragraph 32 above]. Nor does the court follow the [alien’s] reading of the Savran judgment [cited above], insofar as he argued that the [Court] has held that less weight can be given to the nature and gravity of the offence if it is established that the offence cannot be imputed to the person concerned. To this end, first of all, the court considers that this judgment refers to the situation in which the offence cannot be attributed to the person concerned at all. Moreover, the [Court] considered in [paragraph 194 of the Savran judgment] that criminal culpability which is excluded may have the effect of limiting the weight of the nature and seriousness of the crime, and [in paragraph 195 of that judgment] that the Court is not called upon to make general findings in this regard , but only to determine whether the manner in which the national courts assessed this criterion adequately took into account the fact that the applicant in that case was, according to the national authorities, suffering from a serious mental illness.” (emphasis in original) The court dismissed the alien’s appeal. It is unknown whether the person concerned lodged a further appeal against this judgment. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 34.     The applicant complained of an unjustified interference with his right to respect for his private life as provided for in Article 8 of the Convention, which, in so far as relevant, reads: “1.     Everyone has the right to respect for his private ... life ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Admissibility 35.     The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 36 .     The applicant maintained that the revocation of his residence permit and the imposition of the entry ban constituted a disproportionate interference with his right to respect for private life that served no legitimate aim. He submitted that his treatment history showed that he posed no threat to public order. In that respect he pointed to the fact that since his conviction in 1996 he had not committed or been accused of any crimes. When he had violated the terms of his conditional release from confinement in the clinic by smoking marijuana and drinking alcohol after having been informed of the Deputy Minister’s intention to revoke his residence permit, he had immediately reported himself to the staff of the residential facility, which demonstrates that he had learned coping mechanisms to stop and prevent further relapse. 37.     It was also argued that the measures had not been foreseeable by the applicant, who lived in the Netherlands since he was eleven years old and whose legal residence status after the conviction in 1996 had been precarious but had nonetheless been left untouched by the authorities. By waiting more than twenty years, the authorities had left a precarious right in existence for too long (the applicant relied on Aristimuño Mendizabal v. France , no.   51431/99, 17   January 2009) and had thereby relinquished their right to revoke it. Furthermore, the measures had been counterproductive to the aim of the TBS order, which had been for more than twenty years to reintegrate the applicant into Dutch so