CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 juillet 2010

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Netherlands (no. 4900/06) Ramzy v. Netherlands (no. 25424/05) N. v. Sweden (no. 23505/09)     AFGHAN WOMAN AND LIBYAN MAN RISK ILL-TREATMENT IF RETURNED TO COUNTRY OF ORIGIN   Unanimously   Two violations of Article 3 (prohibition of inhuman or degrading treatment) No violation of Article 13 (right to an effective remedy)   of the European Convention on Human Rights if applicants expelled/deported to their country of origin     Principal facts   The first applicant, A., is a Libyan national,   born in 1972 and   living in the Netherlands. The second applicant, Mohammed Ramzy, is an Algerian national, born in 1982 and whose current whereabouts are unknown. The third applicant, N., is an Afghan national who was born in 1970 and lives in Fagersta (Sweden).   All three cases concerned the applicants’ complaints that they would risk ill-treatment if expelled or deported to their country of origin.   A. entered the Netherlands in November 1997 and applied, unsuccessfully, for asylum as he feared persecution in Libya for his involvement since 1988 in a clandestine, nameless opposition group. Following a report by the Dutch General Intelligence and Security Service, he was arrested in August 2002 on suspicion of belonging to a criminal organisation conducting a holy war (jihad) against the Netherlands. He was acquitted of all charges in June 2003. In November 2005, an exclusion order was imposed on him in the Netherlands as he was found to represent a danger to national security.   Mr Ramzy was apprehended in January 1998 in the Netherlands when he was trying to leave in a lorry for the United Kingdom. He applied for asylum, telling the authorities that he grew up in an orphanage, did not know his parents, and left Algeria because it was unstable and dangerous. He also stated, without further explanation, that he was approached by an Islamic fundamentalist movement long before he left Algeria. His asylum application and subsequent appeal being rejected, he continued to live illegally in the Netherlands. In June   2002, he was arrested on suspicion of participating in a criminal organisation which supported, among others, the Taliban and their allies (Al-Qaeda and/or other pro-Taliban combatants). An exclusion order was imposed on him in September 2004 as the Dutch authorities considered he posed a threat to national security. He was acquitted of all charges and was released in August 2005.   N. applied for asylum, together with her husband X., three days after their arrival in Sweden, in August 2004. They claimed that they had been persecuted in Afghanistan because X. had been a politically active member of the communist party. The asylum application being rejected in March 2005, N. appealed claiming that, as she had in the meantime separated from her husband, she would risk social exclusion and possibly death if she returned to Afghanistan. Her appeal was also rejected. She applied for a residence permit three times, as well as for divorce from X., submitting that she was at an ever-heightened risk of persecution in Afghanistan, as she had started an extra-marital relationship with a man in Sweden which was punishable by long imprisonment or even death in her country of origin. All her applications were rejected.     Complaints, procedure and composition of the Court   The applicants complained that, if expelled or deported to their country of origin, they would be at risk of being subjected to inhuman and degrading treatment, in breach of Article   3. A.   and Mr   Ramzy further complained under Article 13 that they could not effectively challenge the ground used – that they were a threat to national security – for the exclusion orders against them.   The applications were lodged with the European Court of Human Rights respectively on 1   February 2006, 15 July 2005, and 28 April 2009.   Judgments were given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President, Elisabet Fura (Sweden), Corneliu Bîrsan (Romania), Boštjan M. Zupančič (Slovenia), in the two cases against the Netherlands, Anne Power (Ireland), in the case against Sweden, Alvina Gyulumyan (Armenia), Egbert Myjer (The Netherlands), Ineta Ziemele (Latvia), judges , and Santiago Quesada, Section Registrar .     Decision of the Court   A. v. the Netherlands   The Governments of Lithuania, Portugal, Slovakia and the United Kingdom challenged what they considered to be the rigid way in which the Court systematically applied the absolute prohibition on ill-treatment. They submitted that, by not allowing the risk of such treatment of the individual in the country of destination to be weighed against the reasons for expulsion, even national security, the Court had caused the States bound by the Convention many difficulties, by preventing them in practice from enforcing expulsion measures. Those four Governments proposed that, if such a State presented evidence that the individual was a threat to national security, in order to trigger the protection of the Convention under Article   3, that individual should have to show that “it was more likely than not” that they would be ill ‑ treated in the receiving country.   Several international human rights organisations strongly supported the Court’s approach to Article 3. According to the AIRE Centre, the rule prohibiting expulsion to face torture or ill ‑ treatment had become a norm of international law. Amnesty International and others reiterated that the burden of proof could not rest with the individual alone, especially as s/he did not always have access to the same information as the State. Also, diplomatic assurances did not suffice to offset an existing risk of torture. It was enough for the applicant to make an arguable case, leaving the expelling state to refute the claims. According to the organisations Liberty and Justice, any change would amount to a dilution of a fundamental human right which would have a long-term corrosive effect on democratic values and the Convention.   The Court reiterated that the prohibition of ill-treatment under Article 3 was absolute, that is to say it made no provision for exception. It further noted that it was not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State was engaged under Article 3. In addition, the existence of domestic laws and accession to international human rights treaties by a State which was not party to the Convention was not by itself sufficient to ensure adequate protection from ill ‑ treatment. That was especially the case where reliable sources had reported practices, manifestly contrary to the Convention, which were actively pursued or tolerated by the authorities.   The Court then noted that the overall human rights situation in Libya continued to give rise to serious concerns. Reports showed that detainees in Libya were at a real risk of being tortured or otherwise ill-treated. Although A. had been acquitted in the Netherlands, his case had been broadly covered in the media and the Libyan authorities had been informed that he had been placed in aliens’ detention for removal purposes. Consequently, it was likely that – once in Libya - A. would be detained and questioned, and that he risked ill-treatment.   Accordingly, the Court concluded that A.’s expulsion to Libya would breach Article 3.   The Court found that there had been no violation of Article 13 as A. had had available an effective remedy in respect of his grievance under Article 3.   Under Article 41, the Court held that the Netherlands had to pay 6,470.25 Euros to A. for costs and expenses.   Ramzy v. the Netherlands   The Court noted that Mr Ramzy’s legal representatives did not know his whereabouts and so could not answer the Court’s questions. It concluded that Mr Ramzy had lost interest in pursuing his application, and decided to strike out the case.   N. v. Sweden   While being aware of reports of serious human rights violations in Afghanistan, the Court did not find that they showed, on their own, that there would be a violation of the Convention if N. were to return to that country.   Examining N.’s personal situation, however, the Court noted that women were at a particularly heightened risk of ill-treatment in Afghanistan if they were perceived as not conforming to the gender roles ascribed to them by society, tradition or the legal system there. The mere fact that N. had lived in Sweden might well be perceived as her having crossed the line of acceptable behaviour. The fact that she wanted to divorce her husband, and in any event did not want to live with him any longer, might result in serious life-threatening repercussions upon her return to Afghanistan. Among other things, the Court noted that a recent law, the Shiite Personal Status Act of April 2009, required women to obey their husbands’ sexual demands and not to leave home without permission. Reports had further shown that around 80 % of Afghani women were affected by domestic violence, acts which the authorities saw as legitimate and therefore did not prosecute. Unaccompanied women, or women without a male “tutor”, faced continuous severe limitations to having a personal or professional life, and were doomed to social exclusion. They also often plainly lacked the means for survival if not protected by a male relative.   Consequently, the Court found that if N. were deported to Afghanistan, Sweden would be in violation of Article 3.   ***   The judgments are available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts [email protected] / +33 3 90 21 42 08 or Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) or Emma Hellyer (telephone: + 33 3 90 21 42 15) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .