CEDH · CASELAW;CLIN;ENG — 9 octobre 2012

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His detention on remand was extended several times. In March 2011 the applicant was transferred from detention in the Democratic Republic of the Congo to the custody of the International Criminal Court (ICC) in The Hague to give evidence as a defence witness, which he did in March and April 2011. In June 2011 he lodged an asylum request with the Netherlands authorities and asked the ICC to order a stay of his removal to the Democratic Republic of the Congo. In July 2011 Trial Chamber I of the ICC decided that the ICC had to provide a proper opportunity for the Netherlands authorities to consider the applicant’s asylum request and for the applicant to make his case. In September 2011 the Immigration and Naturalisation Service of the Netherlands informed the applicant that since he was not within the jurisdiction of the Netherlands it was not possible for him to request asylum and that his request would be treated as a request for protection, 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 European Convention. Subsequently, the applicant challenged the lawfulness of his detention before the Dutch courts, which held that although the Netherlands were prepared to give consideration to the applicant’s request for protection and had asked the ICC 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. Before the European Court the applicant complained under Article 5 §   1 of the Convention that his continued detention in the United Nations Detention Unit was unlawful. The Congolese title for his detention, such as it was, had expired in July 2007 and had not been renewed. The ICC had no legal ground to keep him detained after he had given evidence. The Netherlands authorities had never even claimed that there was a title for the applicant’s detention in Netherlands domestic law. He also alleged a violation of Article   13 of the Convention in that he had not had any effective recourse in the domestic legal system to challenge the legality of his detention. In September 2012 the applicant withdrew his asylum request. He is currently detained in the United Nations Detention Unit within Scheveningen Prison, The Hague. Law – Article 37 § 1: Although the applicant had withdrawn his request for asylum, which unambiguously entailed the relinquishment of his efforts to seek an order from the Netherlands authorities for his release from custody, he had not so informed the Court himself (Rule 47 §   6), nor had he withdrawn his application. The Court was thus left in uncertainty as to whether the applicant wished the Court nonetheless to address the merits of his case. However, the application raised important questions with regard to the application of Article   1 of the Convention. In particular, it touched on essential aspects of the functioning of international criminal tribunals having their seat within the territory of a Contracting State and invested with the power to keep individuals in custody. Moreover, an answer to the questions posed by the present application was urgently required given the uncertainty that had arisen from a recent judgment of the domestic courts in a similar case. The Court therefore decided not to strike the application out of its list. Article 1: In so far as the applicant invoked the territorial principle, it would in the Court’s view be unthinkable for any criminal tribunal, domestic or international, not to be vested with powers to secure the attendance of witnesses. The power to keep them in custody, either because they were unwilling to testify or because they were detained in a different connection, was a necessary corollary. This power was implied in the case of the NATO Status of Forces Agreement , Article   VII of which granted the sending State extraterritorial powers to try and to police; explicit provision for such a power was made for the International Criminal Tribunal for the Former Yugoslavia in Rule 90   bis of its Rules of Procedure and Evidence . The applicant had been brought to the Netherlands as a defence witness in a criminal trial pending before the ICC. He had already been detained in his country of origin and remained in the custody of the ICC. The fact that the applicant was deprived of his liberty on Netherlands soil did not of itself suffice to bring questions touching on the lawfulness of his detention within the “jurisdiction” of the Netherlands as that expression was to be understood for the purposes of Article   1. As long as the applicant was neither returned to the Democratic Republic of the Congo nor handed over to the Netherlands authorities, the legal ground of his detention remained the arrangement entered into by the ICC and the authorities of the Democratic Republic of the Congo under Article 93 §   7 of the Statute of the International Criminal Court . In sum, the applicant’s detention had a basis in the provisions of international law governing the functioning of the ICC and binding also on the Netherlands. As regards the alleged insufficiency of human rights guarantees offered by the ICC, it had powers under Rules   87 and   88 of its Rules of Procedure and Evidence to order protective measures, or other special measures, to ensure that the fundamental rights of witnesses were not violated. It could not be decisive that the orders given by the Trial Chamber in the use of its said powers would not necessarily result in the applicant’s release from detention by the authorities of the Democratic Republic of the Congo, as the applicant appeared to suggest. The Convention did not impose on a State that had agreed to host an international criminal tribunal on its territory the burden of reviewing the lawfulness of deprivation of liberty under arrangements lawfully entered into between that tribunal and States not party to it. The applicant’s final argument was that since the Netherlands had agreed to examine his asylum request, it necessarily followed that the Netherlands had taken it upon itself to review the lawfulness of his detention on the premises of the ICC – and to order his release, presumably onto its territory, if it found his detention unlawful. The Court, for its part, failed to see any such connection in view of its well-established case-law, according to which the right to political asylum was not contained in either the Convention or its Protocols; the Convention did not guarantee, as such, any right to enter, reside or remain in a State of which one was not a national; and, finally, States were, in principle, under no obligation to allow foreign nationals to await the outcome of immigration proceedings on their territory. Conclusion : inadmissible (incompatible ratione personae ). (See also Galić v. the Netherlands (dec.), no. 22617/07, and Blagojević v. the Netherlands (dec.), no.   49032/07, decisions of 9   June 2009, Information Note no.   120 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes