Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

In December 2012 a group of approximately 200 irregular migrants in the Netherlands who – as rejected asylum-seekers – were no longer entitled to State-sponsored care and accommodation for asylum-seekers, squatted the St. Joseph Church in Amsterdam. These irregular migrants formed an action group called “We Are Here / Wij Zijn Hier” seeking attention for and relief from their situation. During their stay there, the St. Joseph Church was colloquially referred to as the Refuge Church (Vluchtkerk). It appears that the group was evicted from the Refuge Church on 31 March 2013.

On 4 April 2013 the municipality of Amsterdam offered temporary shelter to the original members of the group “We Are Here” who had been staying in the Refuge Church since December 2012. Accordingly, 159 persons were housed temporarily in a former detention facility on the Havenstraat in Amsterdam – which came to be known as the Refuge Haven (Vluchthaven) – until 31 May 2014. The remaining persons from the Refuge Church who had been evicted from there and not been offered shelter in the Refuge Haven, squatted an indoor car park, which came to be known as the Refuge Garage (Vluchtgarage).

A number of residents of the Refuge Garage initiated administrative proceedings against the municipality of Amsterdam demanding that they be provided with shelter, food and clothing. In one of those proceedings, lodged by three residents of the Refuge Garage, not including the applicant, a provisional measure (voorlopige voorziening) was granted on 17 December 2014 pending further appeal proceedings before the Central Appeals Tribunal (Centrale Raad van Beroep). At the request of the three petitioners, the provisional-measures judge (voorzieningenrechter) of the Central Appeals Tribunal ordered the municipality of Amsterdam to provide overnight shelter, a shower, breakfast and dinner to the petitioners. In that decision, account was taken of the fact that the Netherlands Institute for Human Rights (College voor de Rechten van de Mens) had found degrading living conditions in the Refuge Garage. In addition, regard was had to two decisions of the European Committee of Social Rights (hereinafter the “ECSR”) of 1 July 2014, in which the Netherlands was found to have breached Articles 13 § 4 and 31 of the European Social Charter (hereinafter the “Charter”) by failing to provide adult irregular migrants with adequate access to emergency assistance, that is food, clothing and shelter (see paragraph 37 below).

In response to this provisional measure, the Association of Netherlands Municipalities (Vereniging van Nederlandse Gemeenten) – in agreement with the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) – set up a scheme to offer basic provisions to irregular migrants, the so-called Bed, Bath and Bread Scheme (bed-bad-broodregeling). That scheme entailed that the central municipalities would provide basic accommodation to irregular migrants including night shelter with shower facilities, breakfast and dinner, starting from 17 December 2014. It was announced from the outset that this scheme would be temporary, awaiting the adoption of a resolution by the Committee of Ministers of the Council of Europe concerning the ECSR’s two decisions, pursuant to Article 9 of the Additional Protocol to the European Charter Providing for a System of Collective Complaints. Although these resolutions were adopted by the Committee of Ministers on 15 April 2015 (see paragraph 38 below), the scheme has been prolonged and is currently still in place.

The applicant fled from Ethiopia to the Netherlands in September 2011. His application for asylum was rejected as unfounded. Apart from the fact that, for reasons found imputable to him, the applicant did not hold any identity or travel documents, he was found to have given inconsistent, contradictory, vague and summary statements to the immigration authorities. In July 2013 he was released from immigration detention (vreemdelingendetentie) because, according to the applicant who has not provided any further details, an effective removal to his country of origin proved not possible. As a rejected asylum-seeker who had failed to leave the country within the voluntary return grace period of four weeks, the applicant was no longer entitled to State-sponsored accommodation and care in one of the reception centres for asylum-seekers.

In December 2013 the applicant, having joined the group “We Are Here”, took shelter in the Refuge Garage in Amsterdam together with approximately 100 other irregular migrants. It appears that he lived in the Refuge Garage until March 2015. Meanwhile, the applicant instituted the proceedings set out in paragraphs 9-19 and 20-24 below.

On 11 February 2015 the applicant filed a fresh asylum application, which was accepted on 30 March 2015. He was provided with a temporary residence permit for asylum purposes valid from 30 March 2015 until 30 March 2020, based on section 29 § 1(a) of the Aliens Act 2000 (Vreemdelingenwet 2000).

On 30 December 2013 the applicant requested the municipality of Amsterdam to grant him State-sponsored care and reception facilities similar to the facilities offered to asylum-seekers by the Central Agency for the Reception of Asylum-Seekers (Centraal Orgaan Opvang Asielzoekers; hereinafter “COA”), submitting, inter alia, that he found himself in an emergency situation considering the appalling living conditions in the Refuge Garage. He further submitted that he had applied for shelter in the Refuge Haven but that, unlike other irregular migrants from the Refuge Church in a similar situation, he had not been admitted to the Refuge Haven.

The applicant submitted that the living conditions in the Refuge Garage were poor. Housing more than 150 persons, it was overcrowded. A limited, insufficient number of toilets was available and there were no washing facilities. Electricity was not always available. The irregular migrants staying in the garage were dependent on volunteers for food and the atmosphere between them was tense, regularly resulting in confrontations which were sometimes violent. The applicant himself had once been threatened and assaulted by a co-resident in the garage. He had sustained a light stab wound. He had reported that incident to the police.

On 31 March 2014 the Mayor and Aldermen (college van Burgemeester en Wethouders) of the municipality of Amsterdam, treating the applicant’s request as an application for access to community shelter services (maatschappelijke opvang) under the Social Support Act (Wet Maatschappelijke Ondersteuning), rejected it as the applicant was neither a Dutch national nor did he hold a residence permit as required by the aforementioned act. An exception to that rule could apply when the right to respect for physical or psychological integrity flowing from Article 8 of the Convention was at stake, in particular if the person concerned was a minor or vulnerable because of a medical emergency. However, as the applicant had not provided any medical information – even though he claimed that he required medical care – he was considered as not falling within the category of vulnerable persons.

With regard to the fact that the applicant had been denied access to the Refuge Haven, the Mayor and Aldermen held that accommodation at that location had been offered to the original members of the group “We Are Here” who had stayed in the Refuge Church for an uninterrupted period of time and who were willing to cooperate with the municipality and other institutions in the organisation of their return to the country of origin. The applicant did not fulfil those requirements.

The Mayor and Aldermen further made reference to the possibility of the applicant requesting the Repatriation and Departure Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) to impose a measure on him within the meaning of section 56 of the Aliens Act 2000 in order to gain access to reception facilities at a centre where his liberty would be restricted (vrijheidsbeperkende locatie). In such centres the focus is on departure from the Netherlands of the person concerned, meaning that reception facilities are provided on condition that the person concerned cooperates in the organisation of his or her departure to the country of origin.

The applicant lodged an objection (bezwaar) against the decision of 31 March 2014 which was dismissed by the Mayor and Aldermen on 11 July 2014, in accordance with an advice drawn up by the objections committee (Bezwarencommissie) on 9 July 2014 and on the same grounds as those on which the initial decision had been based. The applicant lodged an appeal (beroep) with the Amsterdam Regional Court (rechtbank).

On 8 May 2015 the Amsterdam Regional Court accepted the applicant’s appeal and quashed the Mayor and Aldermen’s decision of 11 July 2014. Proceeding to decide on the matter itself, the Regional Court considered that the ECSR’s decisions of 1 July 2014, in which the ECSR had found violations of Articles 13 and 31 of the Charter, could not be overlooked notwithstanding the fact that they were not binding for the State Parties to the Charter. Accordingly, the Regional Court considered that the denial of shelter, food and clothing to irregular migrants touched upon the right to respect for human dignity in such a way as to preclude a person’s enjoyment of private life within the meaning of Article 8 of the Convention. It concluded that the State was under a positive obligation to provide the applicant with shelter, food and clothing and that that provision should not be made conditional on the applicant’s cooperation in the organisation of his departure from the Netherlands. It was noted, however, that the municipality of Amsterdam, simultaneously with other municipalities in major cities of the Netherlands, had established the Bed, Bath and Bread Scheme (see paragraph 5 above), providing, as of 17 December 2014, basic accommodation to irregular migrants including night shelter with shower facilities, breakfast and dinner. As far as the applicant had argued that the Bed, Bath and Bread Scheme was insufficient, he had failed to substantiate that argument with any prima facie evidence.

Moreover, the applicant had obtained a residence permit on 30 March 2015 as a consequence of which he was already entitled to State-sponsored social benefits. The applicant’s argument that his right to emergency social assistance should nevertheless be acknowledged retroactively and that he should be granted living allowances (leefgeld) by way of compensation was dismissed. The Regional Court held that although such a right to emergency social benefits should be acknowledged retroactively, that is from 29 November 2013, there was no legal basis on which to conclude that this right included a right to living allowances. It was open to the applicant to claim compensation for damage in separate proceedings.

Both the applicant and the Mayor and Aldermen lodged a further appeal (hoger beroep) with the Central Appeals Tribunal.

On 26 November 2015 the Central Appeals Tribunal dismissed the applicant’s appeal but accepted the Mayor and Aldermen’s appeal and quashed the Regional Court’s judgment. The Central Appeals Tribunal found that the Mayor and Aldermen’s rejection of the applicant’s request for shelter under the Social Support Act was justified as the applicant had the possibility of receiving shelter at a centre where his liberty would be restricted. Unlike the Regional Court, it agreed with the Mayor and Aldermen that irregular migrants may be denied access to such a centre if they refuse to cooperate in the organisation of their return to their country of origin, unless there existed exceptional circumstances. Such exceptional circumstances could exist when the person concerned had demonstrated that he or she was unable to foresee the consequences of his or her actions or omissions due to his or her psychiatric state of mind. It was, however, incumbent upon the irregular migrant to claim that such exceptional circumstances pertained.

No further appeal lay against this decision.

In the meantime, on 24 March 2014, the applicant had also requested the Deputy Minister of Security and Justice to grant him, either in cooperation with the municipality of Amsterdam or independently, State-sponsored care and accommodation, in particular to offer him shelter as well as (allowances for) food and clothing.

On 25 March 2014 the Deputy Minister rejected the applicant’s request, considering that he could apply for admission in a centre run by the Repatriation and Departure Service where his liberty would be restricted and where he would have to cooperate in the organisation of his departure from the Netherlands. The applicant was reminded of the fact that he was already under a statutory obligation to leave the Netherlands pursuant to section 61 § 1 of the Aliens Act 2000 as his asylum request had been rejected.

The applicant filed an objection against this decision, which was dismissed by the Deputy Minister on 16 June 2014.

An appeal lodged by the applicant was declared inadmissible by the Regional Court of The Hague on 8 September 2015, which considered that the applicant no longer had any interest in challenging the impugned decision in view of the provisional measure issued by the Central Appeals Tribunal on 17 December 2014, pursuant to which the municipality of Amsterdam had been ordered to provide night shelter, breakfast and dinner to irregular migrants (see paragraph 5 above).

Although possible, the applicant did not lodge a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the decision of the Regional Court.

The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Section 5 § 1 of the said act reads as follows:

“An alien who has been refused entry into the Netherlands shall leave the Netherlands immediately, duly observing such directions as may have been given to him for this purpose by a border control officer.”

Section 10 of the Aliens Act 2000 provides as follows:

“1. An alien who is not lawfully resident may not claim entitlement to benefits in kind, facilities and social security benefits issued by decision of an administrative authority. The previous sentence shall apply mutatis mutandis to exemptions or licenses designated in an Act of Parliament or Order in Council.

The first subsection may be derogated from if the entitlement relates to education, the provision of care that is medically necessary, the prevention of situations that would jeopardise public health or the provision of legal assistance to the alien.

The granting of entitlement does not confer a right to lawful residence.”

Section 45 of the said Act provides the following on the legal consequences of a rejection of an application for a residence permit in the Netherlands:

“1. The consequences of a decision whereby an application for the issue of a residence permit for a fixed period [...] or a residence permit for an indefinite period [...] is rejected shall, by operation of law, be that:

(a) the alien is no longer lawfully resident [...];

(b) the alien should leave the Netherlands of his own volition within the time limit prescribed in section 62, failing which the alien may be expelled;

(c) the benefits in kind provided for by or pursuant to the Act on the Central Agency for the Reception of Asylum-Seekers or another statutory provision that regulates benefits in kind of this nature will terminate in the manner provided for by or pursuant to that Act or statutory provision and within the time limit prescribed for this purpose;

(d) the aliens’ supervision officers are authorised, after the expiry of the time limit within which the alien must leave the Netherlands of his own volition, to enter every place, including a dwelling, without the consent of the occupant, in order to expel the alien;

(e) the aliens’ supervision officers are authorised, after the expiry of the time limit referred to in (c), to compel the vacation of property in order to terminate the accommodation or the stay in the residential premises provided as a benefit in kind as referred to in (c).

Subsection 1 shall apply mutatis mutandis if:

(b) A residence permit has been cancelled or not renewed.

The consequences referred to in subsection 1 shall not take effect as long as the application for review lodged by the alien suspends the operation of the decision.

[The] Minister may order that, notwithstanding subsection 1, opening words and (c), the benefits in kind provided for by or pursuant to the Act on the Central Reception Organisation for Asylum-Seekers or another statutory provision that regulates benefits in kind of this nature will not terminate for certain categories of alien. The order shall be repealed no later than one year after its notification.

An alien to whom an order as referred in subsection 4 is applicable shall be deemed to be lawfully resident as referred to in section 8 (j).”

Under the Act on the Central Agency for the Reception of Asylum-Seekers (Wet Centraal Orgaan Opvang Asielzoekers) and related regulations, including the Regulation on Provisions for Asylum-Seekers and Other Categories of Aliens (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen), the Central Agency – an autonomous administrative authority – is responsible for the provision of reception facilities which comprise housing, basic subsistence means and health care to asylum-seekers.

If no residence permit is granted to an asylum-seeker, he or she will remain entitled to benefit from the reception facilities for asylum-seekers for a grace period of four weeks after the date of the final decision taken on his/her request. The rejected asylum-seeker is given this grace period to leave the Netherlands voluntarily – if need be assisted by the International Organisation for Migration – as he/she is no longer lawfully staying in the Netherlands and under a legal obligation to leave. After the expiry of this period, access to reception facilities is automatically terminated without a specific decision. Nevertheless, an alien in such a situation may apply to the Central Agency for continued reception facilities. If highly exceptional circumstances so require, the Central Agency can take a decision to that effect. A negative decision can be appealed to the Regional Court and, subsequently, to the Administrative Jurisdiction Division. Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure pending the outcome of the appeal proceedings.

Rejected asylum-seekers and other migrants in an irregular situation are entitled to health care in cases of medical emergency (as well as legal aid and education for minors). Rejected applicants for a residence permit with physical and/or psychological problems severe enough to make them unfit for travel may furthermore apply for the deferral of their departure from the Netherlands under section 64 of the Aliens Act 2000. The expulsion is then suspended for the duration of the severe medical condition and the migrant concerned is granted a right to accommodation.

A migrant, who is under the legal obligation to leave the Netherlands because his or her lawful residence or entitlement to State-sponsored care and accommodation has come to an end, can be offered accommodation in a centre where his or her liberty is restricted. Such accommodation is based on a so-called liberty-restricting measure (vrijheidsbeperkende maatregel) within the meaning of section 56 of the Aliens Act, which measure entails that the person concerned can move in and out of the centre freely but is prohibited from crossing the municipal boundaries where the centre is located. That accommodation is offered for twelve weeks and its main focus is the migrant’s departure from the Netherlands to the country of origin with the Repatriation and Departure Service’s assistance: there has to be a realistic prospect of an effective return within twelve weeks and the migrant must be willing to cooperate by taking steps to effectuate his or her departure from the Netherlands.

A temporary residence permit may be issued to migrants who, through no fault of their own, cannot leave the Netherlands (buitenschuldvergunning) pursuant to section 3.48 § 2a of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). Section B8/4.1 of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000) lays down the conditions with which an alien must comply in order to be eligible for such a residence permit. At the relevant time the conditions were that:

“[T]he alien has:

- done everything within his power to organise his departure independently;

- no doubt exists about his nationality and identity; and

- he cannot be blamed for his inability to leave the Netherlands.

the alien has:

- turned to the International Organisation for Migration in order to facilitate his departure; and

- this organisation has indicated that it is not capable of organising the aliens’ departure due to the fact that the alien submits that he is unable to have travel documents at his disposal[;]

the alien has:

- requested the Repatriation and Departure Service to mediate in obtaining the required documents of the authorities of the country to which departure is possible; and

- the mediation has not led to the desired result; and

the alien:

- is residing in the Netherlands without a valid residence permit;

- does not comply with other conditions for being granted a residence permit; and

- has not also filed an application for a residence permit for the purpose of residence on other grounds.”

From 1 January 2014 onwards, section 8 of the Social Support Act (Wet Maatschappelijke Ondersteuning; “WMO”) has provided as follows:

“1. An alien can only be eligible for individual assistance, women’s shelter services or a payment as referred to in section 19a if he is lawfully resident within the meaning of section 8, subsection (a) to (e) inclusive and (l) of the Aliens Act 2000.

An alien can only be eligible for community shelter services if he is lawfully resident within the meaning of section 8, subsection (a) to (e) inclusive and (l) of the Aliens Act 2000, except in cases referred to in article 24, paragraph 2 of Directive 2004/38/EC.

Notwithstanding subsections 1 and 2, in cases designated by order in council, if necessary notwithstanding section 10 of the Aliens Act 2000, categories of aliens residing unlawfully in the Netherlands specified by or pursuant to that order may be wholly or partially eligible for assistance specified by that order or for a payment as referred to in section 19a. Eligibility for assistance or a payment as referred to in section 19a does not confer any right to lawful residence on an alien.

The order referred to in subsection 3 may provide that the municipal executive is responsible for delivering the assistance designated by that order.”

Article 13 of the Charter, entitled “The right to social and medical assistance”, provides as follows:

“Anyone without adequate resources has the right to social and medical assistance.

With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake:

to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition;

to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953.”

Article 31 of the Charter, entitled “The right to housing”, provides as follows:

“Everyone has the right to housing.

With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed:

to prevent and reduce homelessness with a view to its gradual elimination;

The first paragraph of the Appendix to the Social Charter reads:

“Without prejudice to Article 12, paragraph 4, and Article 13, paragraph 4, the persons covered by Articles 1 to 17 include foreigners only insofar as they are nationals of other Contracting Parties lawfully resident or working regularly within the territory of the Contracting Party concerned, subject to the understanding that these articles are to be interpreted in the light of the provisions of Articles 18 and 19.

This interpretation would not prejudice the extension of similar facilities to other persons by any of the Contracting Parties.”

On 1 July 2014 the ECSR adopted two decisions on the merits in the cases of Conference of European Churches (CEC) v. the Netherlands (complaint no. 90/2013) and in European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands (complaint no. 86/2012). It found that the Netherlands had violated Article 13 §§ 1 and 4 of the Charter, which guarantees the right to social assistance, and Article 31 § 2 of the Charter, the right to housing, by failing to provide adequate access to emergency assistance (food, clothing and shelter) to adult migrants in an irregular situation. In CEC v. the Netherlands the ECSR held the following:

“73. With regard to Article 13 § 4 in particular, the Committee recalls that emergency social assistance should be provided under the said provision to all foreign nationals without exception (Conclusions 2003, Portugal). Also migrants having exceeded their permitted period of residence within the jurisdiction of the State Party in question have a right to emergency social assistance (Conclusions 2009, Italy). The beneficiaries of the right to emergency social assistance thus include also foreign nationals who are present in a particular country in an irregular manner (Conclusions 2013, Malta).

The Committee observes in this connection that the complaint concerns the provision of the necessary food, water, shelter and clothing to adult migrants in an irregular situation. It considers the issues at hand to be closely linked to the realisation of the most fundamental rights of these persons, as well as to their human dignity.

Pursuant to the above, Article 13 § 4 applies to migrants in an irregular situation.

The Committee recalls that human dignity is the fundamental value and the core also of European human rights law (FIDH v. France, cited above, §31).

Even though the Convention and the relevant legal rules of the European Union on asylum are applicable only to foreigners staying in a regular manner within the jurisdiction of the States Parties, the Committee observes that both the Court and the Court of Justice in their recent case-law have acknowledged the importance of preserving human dignity in connection with the minimum protection provided to migrants (see paragraphs 28-29, 47-48).

The Committee observes in this connection that the scope of the Charter is broader and requires that necessary emergency social assistance be granted also to those who do not, or no longer, fulfil the criteria of entitlement to assistance specified in the above instruments, that is, also to migrants staying in the territory of the States Parties in an irregular manner, for instance pursuant to their expulsion. The Charter requires that emergency social assistance be granted without any conditions to nationals of those States Parties to the Charter who are not Member States of the Union. The Committee equally considers that the provision of emergency assistance cannot be made conditional upon the willingness of the persons concerned to cooperate in the organisation of their own expulsion.”

Following the abovementioned decisions of the ECSR, the Committee of Ministers, on 15 April 2015, adopted two substantially the same resolutions (Resolution nos. CM/ResChS(2015)5 and CM/ResChS(2015)4). Taking note of the Netherlands’ Government’s submissions in which they had expressed their concern that the ECSR had not given a correct interpretation of the appendix to the Charter which excludes from the scope of the Charter all aliens who are not lawfully residing on the territory of a State Party, these resolutions read, in so far as relevant:

“The Committee of Ministers,

recalls that the powers entrusted to the ECSR are firmly rooted in the Charter itself and recognises that the decision of the ECSR raises complex issues in this regard and in relation to the obligation of States parties to respect the Charter;

recalls the limitation of the scope of the European Social Charter (revised), laid down in paragraph 1 of the appendix to the Charter;

looks forward to the Netherlands reporting on any possible developments in the issue.”

The information contained on the website of the Repatriation and Departure Service concerning possibilities for migrants in the Netherlands to return to Ethiopia, reads, in so far as relevant:

“Voluntary return

Voluntary return is possible. The diplomatic representation issues laissez-passers to aliens who wish to return to Ethiopia and who can demonstrate their identity and Ethiopian nationality. The establishment of the identity and nationality depends on the presence of a (copy of) passport or an original and validated birth certificate. The alien must sign the laissez-passer, otherwise it is not valid.

Forced return

Forced return is possible with an original passport. The diplomatic representation may issue replacing documents if the alien wishes to return.”


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

George Nicolaou;Krzysztof Wojtyczek;Yonko Grozev

I. THE CIRCUMSTANCES OF THE CASE

On 9 August 1995 the Shijak Commission recognised the applicants’ inherited title to a plot of land measuring 1,020 sq. m of which 747 sq. m were restored. Since the remaining plot of land measuring 272 sq. m was occupied, the applicants would be compensated in one of the ways provided for by law.

The Commission decision remains unenforced.

On 8 February 1995 the Shkodër Commission recognised the applicant’s and other heirs’ inherited title to a two-storey building and to a plot of land surrounding the building measuring 500 sq. m. Since the plot of land measuring 500 sq. m was occupied, the applicant and the heirs would be compensated in one of the ways provided for by law. It was also decided that the building should be restored to them.

The applicant claimed that in 1995 and 1997 he instituted two legal actions against a third party for the vacation and restoration of his property. However, he decided to discontinue those actions, having regard to pending judicial proceedings in other cities. It would appear that the third party has built unauthorised constructions on the applicant’s plot of land.

On 12 May 1994 the Shijak Commission recognised the applicants’ inherited title to a plot of land measuring 5,527 sq. m of which 5,000 sq. m were restored. Since the remaining plot of land measuring 527 sq. m was occupied, the applicants would be compensated in one of the ways provided for by law.

On 13 August 2007 the Durrës Commission recognised the applicants’ inherited title to a plot of land measuring 65,000 sq. m of which 60,000 sq. m were restored to them. Since the remaining land measuring 5,000 sq. m consisted of arable land, roads and channels (“e llojit arë, rrugë e kanale”) was occupied, the applicants would be compensated in one of the ways provided for by law.

The relevant domestic law and practice have been described in detail in, inter alia, Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and Ramadhi v. Albania (no. 38222/02, 13 November 2007).

On 6 March 2013 and 30 July 2014 the Government approved and issued new property valuation maps, which included the reference price per square metre throughout the country (Council of Ministers’ decisions (“the CMD”) nos. 187 of 6 March 2013 and 514 of 30 July 2014).

Subsequent to the events described in Karagjozi and Others v. Albania [Committee], nos. 25408/06, 37419/06, 49121/06, 1504/07, 19772/07, 46685/07, 49411/07, 27242/08, 61912/08 and 15075/09, §§ 36-38, 8 April 2014, the Committee of Ministers gave a decision on 6 March 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land. This decision, which was adopted at its 1193th meeting, stated, in so far as relevant, the following:

“The Deputies

considered the actions taken since September 2013 and the measures foreseen for the coming weeks and months as encouraging; regretting, however, that the deadline fixed by the pilot judgment will not be met, underlined that in order to fulfill the obligations imposed by the European Court and to introduce the required compensation mechanism without further delay and within the time frame proposed by the action plan, the political commitment expressed in the action plan must be followed by concrete and substantial actions at the domestic level, in particular in the fields identified by the Committee in its Interim Resolution CM/ResDH(2013)115;

The Committee of Ministers’ decision of 5 June 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1201st meeting, stated, in so far as relevant, the following:

“The Deputies

welcomed the formal adoption by the Albanian Council of Ministers of the action plan for the establishment of an effective compensation mechanism, thereby rendering the action plan binding, and noted with satisfaction that the measures foreseen are being adopted in conformity with the previsions in that plan;

in view of the overall deadline foreseen for the implementation of this mechanism, strongly encouraged the authorities to intensify their efforts with a view to reducing this time-frame as much as possible;

The Committee of Ministers’ decision of 11 June 2015, which was adopted at its 1230th meeting, stated, in so far as relevant, the following:

“The Deputies

welcomed the commitment showed by the Albanian authorities in the search for an effective and sustainable solution to the important structural problem at stake in this group of cases; welcomed in this regard their presentation of the draft law and their co-operation with the Council of Europe, as well as the close consultations held with the Department for Execution, particularly in Tirana on 23 April 2015;

noted that, as requested by the Committee of Ministers and by the pilot judgment Manushaqe Puto, the authorities have conducted a careful review of all of the legal and financial implications and have estimated the overall cost of compensation in order to have a concrete basis for considering the necessary legislative changes;

invited the Albanian authorities to submit, as soon as possible, explanations and additional information on the solutions proposed in the draft law ...


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, JAKOB’S CENTER d.o.o., is a private company with a registered office in Zgornji Brnik. It was represented before the Court by Mr I. Trebec, a lawyer practising in Sežana.

The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.

The facts of the case, as submitted by the parties, may be summarised as follows.

At the time of the events at issue, the applicant company was acting as a forwarding agent and customs broker for import-export transit operations. In that capacity, it was liable for the payment of customs debts if they were incurred. In 1997, the company carried out a transit procedure for the importation of goods supposedly destined for Bosnia and Herzegovina; however, in reality the goods never reached their destination, but were placed on the Slovenian market. The operation formed part of a wider fraud involving at least one customs official, P.K., and a number of other persons. Once the fraud had been detected, the customs debt incurred as a result of the fact that the goods had not left the national territory was imposed on the applicant company as the principal actor in the transit procedure.

On 7 April 1998, the applicant company paid 2,265,033.00 Slovenian tolars (SIT) (approximately 9,452 euros (EUR)) and on 17 November 1998 it paid SIT 1,810,855.00 (approximately EUR 7,557). Although it was not disputed by the authorities that the applicant company was the victim of fraudulent activities by third parties, it could not relieve itself of that liability.

The applicant company challenged its liability for the payment of the debt. The Customs Administration of the Republic of Slovenia dismissed its challenge, finding that although it was not the applicant company’s fault that the goods in question had been unlawfully removed from customs supervision, as the principal actor it was nevertheless liable for the payment of the customs debt. Moreover, the Customs Administration noted that any unlawful activity on the part of customs officials bore no relation to the applicant company’s duty to pay the debt. The Administrative Court subsequently dismissed an administrative action lodged by the applicant company. The Supreme Court dismissed an appeal lodged by the applicant company, upholding the position of the lower instances that, by acting as the principal company in the transit procedure, the applicant company had assumed the risk of having to pay customs debt. The Constitutional Court refused to accept the applicant company’s constitutional complaint for consideration.

In their submissions the Government noted that in November 2001 the applicant company had instituted commercial proceedings before the Koper District Court against the Republic of Slovenia and P.K. seeking compensation for the customs payment (SIT 4,075,888.00, approximately EUR 17,008), together with statutory default interest and costs of the proceedings.

The Government further explained that on 9 May 2006 the Koper District Court had found in favour of the applicant company.

The Republic of Slovenia and P.K. lodged an appeal. Thus, when the application was lodged before the Court on 10 April 2007, the proceedings were pending before the Koper Higher Court.

On 21 June 2007 the Koper Higher Court upheld the judgment of 9 May 2006, which then became final.

On 5 September 2007 the Republic of Slovenia lodged a motion for the protection of legality against the judgment of 21 June 2007 with the Office of the State Prosecutor General of the Republic of Slovenia, which did not accept to file a request for the protection of legality.

On 7 September 2007 the Republic of Slovenia enforced the judgment of 9 May 2006 and paid the applicant company EUR 36,908.40 (SIT 8,844,728.97).

In its application to the Court the applicant company did not mention the commercial proceedings or the judgment of 9 May 2006, which had been enforced. In its later submissions, it expressed its wish to maintain the application.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1975 and is detained in Tekirdağ.

On 9 September 1995 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation.

On the same day the public prosecutor at the Istanbul State Security Court prolonged the applicant’s detention in police custody for a period of up to 15 days.

On 13 September 1995 the applicant’s statements were taken by the police in the absence of a lawyer. The applicant confessed to being a member of an illegal organisation and having been involved in a murder.

On 14 September 1995 the applicant participated in a reconstruction of the events (yer gösterme) with another suspect K.A., organised by the police in the absence of a lawyer. According to a report, drafted by police officers and signed by the applicant and K.A., both of the accused gave the details of the murder which they had committed.

On 22 September 1995 the applicant was examined by a doctor from the Istanbul Forensic Institute. A collective medical report was drawn up in respect of the applicant and five other suspects. According to the report, there were no traces of ill-treatment on the applicant’s body.

On 22 September 1995 the applicant was heard by a public prosecutor and an investigating judge respectively. In his statements to the public prosecutor and the investigating judge, the applicant denied his police statements alleging that they had been taken under duress. Following his questioning, the investigating judge ordered the applicant’s detention on remand.

On 9 October 1995 a public prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant with attempting to undermine the constitutional order, an offence prescribed by Article 146 § 1 of the former Criminal Code.

On 7 December 1995 the applicant was heard by the trial court during the first hearing in the presence of his lawyer. The applicant denied all the charges against him and stated that his statements at the police had been taken under duress.

In the meantime, State Security Courts were abolished by Law no. 5190 of 16 June 2004. Accordingly, the case was transferred to Istanbul Assize Court.

On 13 September 2007, relying on, inter alia, the applicant’s and his co-accused K. A.’s statements to the police, the Istanbul Assize Court held that the applicant had committed the offence under Article 146 § 1 of the Criminal Code and sentenced him to life-imprisonment.

On an unknown date the applicant’s lawyer appealed against the judgment of 13 September 2007.

On 1 December 2008 the Court of Cassation upheld the above judgment.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Morocco)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1988 and is currently in the Netherlands.

On 6 July 2012 the applicant left his home in Salouin (Morocco), where he had been living with his parents, for the Netherlands. He went to the Netherlands to visit family but overstayed his tourist visa, which was valid until 24 August 2012. During his stay in the Netherlands he lived with his brother and the latter’s family in Amsterdam.

According to an official report (ambtsbericht) drawn up by the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst – “the AIVD”) dated 14 September 2014, information provided by a generally reliable source indicated that a certain Moroccan national residing in the Netherlands, had sworn allegiance to Abu Bakr al-Baghdadi, the Caliph of the so-called Islamic State in Iraq and al Sham (“ISIS”), and that he was trying to obtain a firearm with which to attack the Netherlands police. The information also contained two telephone numbers used by that person. The official report further stated that it appeared from the AIVD’s own investigation that the person was the applicant, that he was not registered in the Netherlands and that he did not have a valid residence permit.

On 15 October 2014 the applicant was arrested on suspicion of having committed acts in preparation of terrorist offences and placed in police custody. The house where he had been staying was searched by the police, who found and seized notes containing, inter alia, instructions on how to make an improvised explosive device (IED) and a written pledge to ISIS. Furthermore, the police seized a computer and found on the applicant’s Facebook account conversations in which he had made enquiries into how to make IEDs, projecting himself as a supporter of ISIS and expressing his wish to join the jihad in Syria.

On 5 November 2014 the Netherlands investigating authorities sent a request for mutual legal assistance (rechtshulpverzoek) to the competent Moroccan authorities in connection with the criminal investigation against the applicant, requesting, inter alia, the examination of a number of bank accounts and bank cards. The request contained the number of the applicant’s national identity card and specified that the criminal investigation concerned suspicion of (preparation of) murder with a terrorist motive, participation in a criminal organisation with a terrorist aim, preparation of a terrorist offence, and financing of terrorism. On 20 April 2015 a supplementary request was sent to the Moroccan authorities.

The applicant’s remand in custody was extended. Criminal proceedings against him commenced on charges of several preparatory acts of terrorism, including the criminal offence defined in Article 134a of the Criminal Code (Wetboek van Strafrecht), namely the acquisition of information and know-how in preparation of the commission of a terrorist offence.

In April 2015 several articles, written in Dutch, Arabic and English, about the dismantling of a terrorist cell and arrest of its members in Selwane were published on Internet news sites. Those articles also mentioned the arrest in the Netherlands of a Moroccan living there, who was planning attacks in the Netherlands and who had links with that terrorist cell. Some of the articles also stated that information provided by the Moroccan intelligence agency (the General Directorate of Surveillance of the National Territory – “the DGST”) to the AIVD had led to the person’s arrest in the Netherlands.

On 8 September 2015 the Rotterdam Regional Court (rechtbank) acquitted the applicant of all charges. It found that his intent to commit terrorist offences had not been proven in the light of evidence presented by him showing that his chat messages had been meant to impress and show off. His acquittal was reported by various media outlets in the Netherlands. One of those reports stated that, according to his lawyer, the applicant intended to apply for asylum in the Netherlands, as he feared that, in the event of his removal to Morocco, he would be detained in Morocco as a terror suspect. The public prosecutor (officier van justitie) appealed against the acquittal.

On 20 June 2016 the Court of Appeal (gerechtshof) of The Hague quashed the impugned judgment, convicted the applicant of having committed the offence under Article 134a of the Criminal Code, and sentenced him to twelve months’ imprisonment. The applicant’s intent to acquire information and know-how in order to use it in the commission of a terrorist offence was found proven on the basis of numerous chat messages and written notes. Referring to the systematic and radical nature of those messages and given the relatively long period during which the applicant had been engaged in the internet conversations, the Court of Appeal dismissed the argument that he had merely been trying to impress and show off.

The applicant subsequently lodged an appeal in cassation with the Supreme Court (Hoge Raad). On 21 March 2017 the Supreme Court declared the applicant’s appeal inadmissible, providing summary reasoning in application of section 80a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie).

On 28 August 2015 the applicant’s remand in custody came to an end and he was placed in immigration detention (vreemdelingenbewaring). On the same day he applied for asylum, claiming that, if removed to Morocco, he would, inter alia, run the risk of being arrested by the Moroccan secret service, detained in inhumane conditions and tortured, as the Moroccan authorities considered him to be a terrorist.

In support of his claim, the applicant referred to various press articles about the criminal proceedings against him in the Netherlands, as well as to several Internet news articles written in Dutch, Moroccan and English about a terrorist cell in Salouin ‒ the town where he had been living before going to the Netherlands ‒ which had been dismantled by the Moroccan authorities in April 2015. Some articles also mentioned that a member of that terrorist cell who was residing in the Netherlands had been arrested. According to the applicant, they had been referring to him (see paragraph 11 above). Although the applicant denied that he had any contacts with this cell, he stated that because of these allegations he will be associated with these Moroccan suspects of terrorism.

The applicant further submitted that he had learned from his family in Morocco that two acquaintances from his place of birth, Driouch named “A.M.” and “B.M.”, had been arrested by the Moroccan security service in March or April 2014. According to the applicant, this was a strong indication that he too was a target of the Moroccan security service.

By a letter of 15 October 2015, the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) requested the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) to conduct an investigation in Morocco in relation to the applicant’s asylum application. In so far as relevant for the instant case, the letter contained the following questions:

“1) Is [the applicant] known by his stated identity ... at his last known address in Morocco ... in Salouin, region of Nador?

2a) The report about the dismantling of a terrorist cell appeared in Moroccan and international media on 13 April 2015. When were the members of the Moroccan terrorist cell arrested?

2b) Are A.M. and B.M. among those who were arrested? If so, are they from [the applicant’s] birth place, namely Driouch?

2c) Is it known whether [the applicant] and the persons mentioned under 2b) know each other?

3) Are the persons mentioned under 2a) still detained since their arrest in April 2015? If so, what are the charges? If not, when were they released?

4) Is [the applicant] known by name in the media in Morocco as the member residing in the Netherlands of the terrorist cell dismantled in Morocco (as referred to in question 2a)?

5a) Is [the applicant] being searched for by the Moroccan authorities in the context of the criminal investigation of the terrorist cell (as meant in question 2a)?

5b) Is there a charge against [the applicant]? If so, what is the charge?

5c) Is [the applicant] being searched for by the Moroccan authorities in relation to offences other than those mentioned under 5a? If so, in relation to what offences is he being searched for? Has he been convicted of those offences and, if so, what is the sentence?”

In reply to the above request, a person-specific official report (individueel ambtsbericht) was released on 3 December 2015 by the Ministry of Foreign Affairs. The relevant part of the report stated as follows:

“Question 1:

The address ... in Salouin, region of Nador, is [the applicant’s] last known address in Morocco.

Question 2:

a) The members of the Moroccan terrorist cell were all arrested on 13 April 2015.

b) A.M. and B.M. do not find themselves in the group [of persons] arrested on 13 April 2015.

Additional information: the above-cited names are not necessarily the actual names of the persons. In the group of persons, there is an A. and a B.. However, these persons do not have the surname M.

c) This question cannot be answered in the light of the above.

Question 3:

At the time of the investigation, the persons referred to in 2a) were still detained. The charge is:

‘the establishment of a criminal organisation which supports jihadist ideology, in particular by planning to assassinate persons with opposing religious convictions’ (‘la constitution d’une bande criminelle adepte de la pensée djihadiste, projetait notamment l’assassinat de personnes aux convictions religieuses contraires’).

Question 4:

[The applicant] is not mentioned by name in the media reports. It was mentioned in the media reports that a Moroccan national residing in the Netherlands had been arrested in cooperation with the local authorities.

Additional information: nor were the other persons who were arrested on 13 April 2015 mentioned by name in the media reports. ...

Question 5:

a) No, at the time of the investigation [the applicant] was not being searched for by the Moroccan authorities in the context of the criminal investigation as referred to in question 2.

b) No, at the time of the investigation, there was no charge against [the applicant].

c) No, at the time of the investigation [the applicant] was not being searched for by the Moroccan authorities in the context of a criminal investigation into offences other than those as referred to by question 5a.”

By letter of 12 January 2016, in reply to a request for further clarification, the Minister of Foreign Affairs stated:

“There are no indications that [the applicant] is being searched for by the Moroccan authorities in the context of the criminal investigation referred to in question 2a of your letter of 15 October 2015. There are also no indications of a charge against [the applicant] or indications that [the applicant] is being searched for by the Moroccan authorities in connection with a criminal investigation of facts other than those referred to in question 2a of your letter of 15 October 2015.”

The asylum application was rejected by the Deputy Minister on 21 July 2016. In addition, an entry ban (inreisverbod) of twenty years was imposed on the applicant, the Deputy Minister holding that he posed a threat to public safety on account of his criminal conviction and information from the Netherlands security service that he posed a danger to national security. Furthermore, and referring to the person-specific official report of 3 December 2015, the Deputy Minister held that the applicant had failed to demonstrate that he faced a real and personal risk of treatment contrary to Article 3 of the Convention in Morocco. The applicant was not being searched for by the Moroccan authorities, nor had he been charged with any criminal offences there. The Deputy Minister found that the applicant’s fear of being arrested, tortured and detained was based on general reports and assumptions. The Deputy Minister referred to earlier experiences with young Moroccan men who had stood trial in the Netherlands on charges related to Islamic terrorism and who had been removed to Morocco. None of them had encountered any problems from the side of the Moroccan authorities that could be regarded as relevant from an asylum-law perspective. On this point, the Deputy Minister referred to an article published on 10-11 September 2011 in the Netherlands daily newspaper NRC Handelsblad about the experiences of four convicted members of the Islamist terrorist “Hofstad group” (Hofstadgroep) who, after having served their sentence in the Netherlands, had been removed to Morocco.

The applicant lodged an appeal (beroep) with the Regional Court, submitting in addition to his previous submissions, inter alia, a copy of an email from his Moroccan attorney, E.I., and extracts from a Moroccan police report dated 24 April 2015 concerning a criminal investigation in respect of several persons, including one “B.B.” (previously referred to by the applicant as “B.M.”). The police report stated that B.B. was the person behind the radicalisation of his neighbour (the applicant), who was being detained in the Netherlands in connection with terrorism. It further stated that, after the applicant’s departure to the Netherlands, they had remained in contact by telephone and that in their conversations, the applicant had indicated his wish to buy a firearm, and that he intended to learn how to make explosives for use in a terrorist act in the Netherlands.

On 14 February 2017 the Regional Court of The Hague, sitting in Rotterdam, dismissed the appeal and upheld the impugned decision. As regards the applicant’s reliance on Article 3 of the Convention, it held as follows:

“6. [The appellant] argues that on return he will be at a real risk of a violation of Article 3 of the Convention. He fears that he will be detained and ill-treated because – due to media reports – he is being linked by the Moroccan authorities to terrorist groups and terrorist activities. On this point [the appellant] refers to various documents. In addition, [the appellant] argues that [the Deputy Minister] was not allowed to base his decision on the person-specific official report of the Ministry of Foreign Affairs as insufficient due care had been taken in drawing it up and, in addition, as it lacks clarity.

6.1. The court states at the outset that it is in principle for [the appellant] to make out a plausible case that he is running a real risk of a violation of Article 3 of the Convention. [The appellant] has submitted a number of documents in substantiation of his claim. In addition, [the Deputy Minister] has met [the appellant] halfway in the discharge of the burden of proof which rests on the latter by having the Ministry of Foreign Affairs conduct an investigation which has resulted in a person-specific official report. The court will discuss below [the appellant’s] documents and the person-specific official report of the Ministry of Foreign Affairs.

6.2. [The appellant] has submitted media reports about a terrorist cell that intended to commit attacks in the Netherlands and about a Moroccan man, [name of appellant], who was arrested in October 2014 in the Netherlands on suspicion of terrorism and convicted by the Court of Appeal. [The appellant] also submitted documents about a Moroccan Dutchman who had been interrogated and tortured in Morocco and referred to information from Amnesty International and Human Rights Watch about torture and ill-treatment of detainees and unfair proceedings for terrorist suspects in Morocco. In addition, [the appellant] has submitted an email message from his Moroccan lawyer about the negative attention which [the applicant] will attract upon return and a copy of (part of) an official report of the police in Morocco in the terrorism case of B.B. in which [the appellant’s] name is mentioned. In addition, [the appellant] has submitted part of a judgment of the [Tribunal Correctionnel de Paris] concerning G.H., who is suspected of terrorist activities and [the appellant] claims that this person has been convicted again in Morocco for the same set of facts.

6.2.1. In so far as it appears from the documents submitted by [the appellant] that he is known as a terror suspect or has been convicted of facts relating to terrorism, the court considers that this has already been found credible by [the Deputy Minister]. The circumstance that, because of media reports about this, [the appellant] is known in the Netherlands and Morocco does not mean that therefore he runs a real risk of serious harm when he returns to Morocco. [The appellant] fears that, because of being known [by those authorities], he will upon return be arrested and ill-treated by the Moroccan authorities, but for substantiation purposes has not submitted documents concerning [himself]. [The appellant] has pointed to general information about the treatment of detainees in Morocco and about the proceedings in respect of terrorist suspects, but this information is only relevant if it is plausible that [the appellant] upon return will be arrested or prosecuted for terrorism. In the court’s opinion, [the Deputy Minister] has not unjustly adopted the position that [the appellant] has not made out a plausible case. In the email message from [the appellant’s] Moroccan lawyer submitted by [the appellant], this lawyer reports that [the appellant] will be tried when transferred to Morocco, even though he has already been tried in the Netherlands, and refers to two decisions in which the same person was convicted both in France and in Morocco for the same facts. This means that the email message contains no more than a statement from [the appellant’s] lawyer, without specific further substantiation relating to [the appellant] from which it follows that [the appellant] will be prosecuted in Morocco. Reference is only made to a case of another person convicted in France, but no documents have been submitted showing that this person has been convicted of the same facts in Morocco. Nor have documents been submitted from which it can be deduced that [the appellant] finds himself in the same situation. It can further not be concluded from the copy of (a part of) a report of the Moroccan police, submitted by [the appellant], that [the appellant] is being searched for in Morocco as a suspect of terrorism. As pointed out rightly by [the Deputy Minister], the document only contains information about the activities of the suspect B.B., including the influencing of [the appellant], but it does not appear from the document that [the appellant] is involved in any criminal proceedings. However, triggered by what [the appellant] has presented about the terror cell dismantled in April 2015, of which B.B. was a member, [the Deputy Minister] asked the Ministry of Foreign Affairs for a person-specific official report, which will be discussed below.

6.3.1. According to the constant case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) (including the ruling of 29 July 2016, ECLI:NL:RVS:2016:2171), an official report from the Minister of Foreign Affairs about the situation in a country is an expert opinion for the Deputy Minister for the exercise of the latter’s powers. If it provides information in an impartial, objective and transparent manner with an indication, in so far as this is responsible, of the sources from which this information is derived, the Deputy Minister may, in making a decision, assume the correctness of this information, unless there are concrete reasons for doubting that accuracy. As regards person-specific official reports, the Administrative Jurisdiction Division has considered that, if a person-specific official report contradicts the asylum claim which it concerns, it is for the alien concerned to refute the official report.

6.3.2. [The appellant’s] argument that [the Deputy Minister] was not allowed to base his decision on the person-specific official report of the Ministry of Foreign Affairs because insufficient due care had been taken in drawing it up, fails. On 8 December 2015 the Deputy Minister carried out a REK-check, which entails [the Deputy Minister] assuring himself that the person-specific official report has been drawn up with due care and is comprehensible. The outcome of the REK check was that this could not be concluded. Subsequently, the Ministry of Foreign Affairs was asked for further clarification, [in response] to which the Ministry of Foreign Affairs supplemented, by letter of 12 January 2016, the person-specific official report. On 14 January 2016 a fresh REK check was carried out and it was concluded that the person-specific official report was comprehensible but that, procedurally, due care had not been exercised in preparing the report, as the investigation in Morocco had taken place without using a trusted local advisor (vertrouwenspersoon). Although in the case of an asylum application this falls short of due care, the court finds that in this case [the Deputy Minister] did not have to see reason for not taking into account in the decision making the person-specific official report of the Ministry of Foreign Affairs, as [the Deputy Minister] has given sufficient reasons for holding that the interests of [the appellant] were not harmed by this failure to exercise due care. [The Deputy Minister] has indicated that the use of a trusted local advisor is to ensure that the authorities of the country of origin are not informed of the alien’s stay in the Netherlands and of his asylum application, whereas in this case it can be assumed that the Moroccan authorities, due to reports in the media there, are already aware [of this circumstance]. On this point [the Deputy Minister] has referred to a number of media reports. [The appellant] has not argued or further substantiated that that knowledge by the Moroccan authorities will lead to problems. Also for the remainder, [the appellant] has not indicated why his interests would have been harmed by the lack of due care in the preparation of the person-specific official report.

6.3.3. The person-specific official report of the Ministry of Foreign Affairs states, inter alia, that the members of the terrorist cell dismantled on 13 April 2015, which is mentioned in the coverage referred to by [the appellant], were all arrested on that date. This group does not include A.M. or B.M. as mentioned by the applicant, but these names are not necessarily the names of the persons. The group does include an A. and a B., but not with the family name M. In addition, the person-specific official report states that these persons were still in detention at the time of the investigation and that neither [the appellant] nor these persons were mentioned by name in press reports about the dismantled terror cell. It is indeed mentioned in press reports that a Moroccan staying in the Netherlands has been arrested in cooperation with the local authorities. Finally, it has been included in the person-specific official report that at the time of the investigation [the appellant] was not being searched for by the Moroccan authorities in connection with the criminal investigation into the dismantled terror cell, that at the time of the investigation no charge had been brought against [the appellant] and that at the time of the investigation [the appellant] was not being searched for by the Moroccan authorities in connection with a criminal investigation into other facts.

6.3.4. [The appellant’s] argument that [the Deputy Minister] was not allowed to base his decision on the person-specific official report of the Ministry of Foreign Affairs because it contains unclear points, also fails. In the opinion of the court, [the appellant] has not presented any concrete arguments for [the court] to doubt the correctness of the person-specific official report. [The appellant] has argued that it is unclear to what extent the [Moroccan] investigating judge (onderzoeksrechter) is competent to make statements about [the appellant]. In the first place, this mere remark does not comprise a concrete argument as mentioned above. Irrespective of this, the court considers that, on the basis of the underlying materials of the person-specific official report which the court has consulted, it can be assumed that the investigating judge in question is competent and able to provide the information given. Also the mere assertion of [the appellant] that it is odd that the investigating judge, who apparently holds all information on terrorism cases, is not asked whether [the appellant] is being searched for, is not a concrete argument in the above sense. Moreover, it follows from question 5 in the letter from [the Deputy Minister] to the Ministry of Foreign Affairs of 15 October 2015 that the Ministry has been asked both whether [the appellant] is being searched for by the Moroccan authorities in connection with the criminal investigation into the arrested terror cell and whether [the appellant] is being searched for by the Moroccan authorities in connection with a criminal investigation into other facts. Also, the unclear assertions made by [the appellant] about the names of the persons arrested, mentioned in the person-specific official report and the notion ‘at the time of the investigation’ offer no concrete reasons to doubt the accuracy of the person-specific official report. The term ‘at the time of the investigation’ cannot be read otherwise than that the question has been answered by the investigating judge on the basis of the state of affairs at the time of the investigation. Incidentally, [the appellant] has not argued that the state of affairs would be different at a different (later) point in time. As to the names of the arrested persons, the person-specific official report already states that the names may also be different. Also on this point the court sees no reason for doubting the correctness [of the official report]. As the document from the criminal case file submitted by [the appellant], which possibly refers to him, is of a much earlier date than the person-specific official report of the Ministry of Foreign Affairs, it is not plausible that this reference has given the Moroccan authorities cause to open a criminal investigation against [the appellant]. This is [therefore] not a concrete reason for doubting the correctness and completeness of the person-specific official report.

6.4. In addition to the person-specific report of the Ministry of Foreign Affairs, [the Deputy Minister] has also referred to experiences made with young Moroccan men (including members of the Hofstad group) who had been the subject of a terrorism trial in the Netherlands and/or constituted a danger to Dutch national security in connection with involvement in Islamic terrorism and/or jihad and for that reason [had been] returned to Morocco. According to [the Deputy Minister], no signals to be taken seriously have been received from them that, upon their return, they had encountered problems, relevant from an asylum-law perspective, from the side of the Moroccan authorities. The court notes that [the appellant] has not rebutted this in a substantiated manner and finds that [the Deputy Minister] has correctly taken this into account in his assessment. In this respect, the court refers to the ruling of the [Administrative Jurisdiction] Division of 5 October 2016 (ECLI:NL:RVS:2016:2692). [The appellant] has not established that the Moroccan authorities will act differently in his case.

6.5. The court concludes that it follows from the person-specific official report of the Ministry of Foreign Affairs that [the appellant] is not being searched for by the Moroccan authorities in connection with the criminal investigation concerning the dismantled terror cell or other facts and that [the appellant] has not put forward any concrete arguments for [the court] to doubt the correctness of this information. Nor can it be deduced from the documents submitted by [the appellant] that he is being searched for by the Moroccan authorities and/or will be detained and tortured upon return. This can also not be inferred from previous experiences in similar cases. Thus the fear alleged by [the appellant] upon return has not been made plausible. In view of this, [the Deputy Minister] rightly took the view that [the appellant] has not established that, upon return, he will run a real risk of a violation of Article 3 of the Convention. ...”

The applicant lodged a further appeal (hoger beroep) against the Regional Court’s decision with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). He also requested a provisional measure (voorlopige voorziening), namely to stay his removal pending the outcome of the further appeal. Neither a further appeal nor a request for a provisional measure has automatic suspensive effect.

On 21 February 2017 the applicant asked the Court to apply an interim measure under Rule 39 of the Rules of Court, in order to stay his removal to Morocco. The determination of that request was adjourned by the Court on the same day and the Government were requested to submit factual information.

On 22 February 2017 the Administrative Jurisdiction Division granted the applicant’s request for a provisional measure by revoking the order to expel the applicant to Morocco scheduled for 25 February 2017. In view of that decision, the Court decided on 23 February 2017 to suspend until further notice the determination of his Rule 39 request.

On 28 February 2017 the Administrative Jurisdiction Division rejected the applicant’s further appeal. It held that under section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling. On the same day the Administrative Jurisdiction Division rejected the applicant’s request for a provisional measure.

On 2 March 2017 the applicant’s lawyer was informed that the applicant’s removal to Morocco had been scheduled for 4 March 2017.

On 3 March 2017 the Court applied Rule 39 for a period of four weeks and requested further factual information from the Government. The requested information was received on 22 March 2017.

The Government informed the Court that in the context of the criminal proceedings against the applicant information had been exchanged between the Moroccan and the Dutch authorities through a legal assistance request submitted by the Dutch authorities on 5 November 2014 and a supplementary request on 20 April 2015 (see paragraph 9 above). They added that the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst), in establishing that there was no Article 3 risk for the applicant were he to be removed to Morocco, had taken into account that the Moroccan authorities had been apprised of the criminal proceedings and that they were likely to be aware of the outcome thereof. The Government added that the Moroccan authorities had not sought the applicant’s extradition. The Government had not sought specific guarantees from the Moroccan authorities as they took the view that the applicant’s removal would not result in a violation of Article 3 of the Convention. The authentic and valid ID-card held by the applicant was sufficient for him to be accepted onto a flight to Morocco. No special procedure had been put in place for his removal, but during his transfer he would be accompanied by officers of the Royal Netherlands Military Constabulary (Koninklijke Marechaussee) and after arrival he would be handed over to the authorities at the destination airport. The Government lastly informed the Court that they had not been able to obtain further information regarding the criminal proceedings against the members of the terrorist cell which had been dismantled in Morocco in April 2015.

On 29 March 2017 the applicant informed the Court that, through his Moroccan attorney E.I., he had been able to obtain a copy of the judgment by which B.B. and eight others had been convicted of, inter alia, the establishment of a terrorist group loyal to the Islamic State intended to commit terrorist activities against the public order of Morocco. B.B. had been sentenced to five years’ imprisonment. The judgment in Arabic, which runs to twenty-three pages, contains the following passage:

“B.B. has several connections with jihadis. In particular, he recruits young men in his area for his terrorist organisation. In 2015 a befriended policeman in Nador informed B.B. – after receiving secret Government information – that he should break off his contact with people involved with terrorist organisations, including amongst others [the applicant’s name] who lives in the Netherlands.”

On 30 March 2017 the interim measure under Rule 39 staying the applicant’s removal to Morocco was extended for the duration of the proceedings before the Court.

On 15 November 2017 the Government submitted a copy of a judgment given on 21 December 2016 by the criminal division of the Rabat Court of Appeal for Terrorism Cases on an appeal lodged by G.H. (see paragraph 23 above at point 6.2) – assisted by the attorney E.I. – against a judgment given on 10 March 2016 by the criminal division of the Rabat First Instance Court for Terrorism Cases. The appellate court overturned the impugned judgment, finding that pursuant to Article 707 of the Moroccan Criminal Code, which contains the ne bis in idem rule, the appellant could no longer be tried for facts in respect of which he had already been convicted by a criminal court in France and had already served the sentence imposed by that court. Consequently, it acquitted him of the charges of the establishment of a criminal group for the preparation and commission of terrorist offences, illegal use and possession of fire arms and ammunition in the context of a joint project aimed at endangering public order, and inciting and persuading others to commit terrorist offences. It did, however, convict him of complicity in providing support to those who commit a terrorist offence and imposed a conditional one-year prison sentence.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1953 and lives in Yerevan.

On 30 December 2004 an investigator decided to institute criminal proceedings in connection with alleged usury by the applicant, proscribed by Article 213 § 1 of the Criminal Code (“the CC”).

On 10 January 2005 the Kentron and Nork-Marash District Court of Yerevan ordered a search of the applicant’s apartment.

On 20 June 2005 the applicant was formally charged under Article 213 § 2 (1) and (2) of the CC with performing usury as a profession which resulted in dire financial consequences for the injured parties. On the same day the investigator decided, as a preventive measure, to have the applicant give a written undertaking not to leave his place of residence.

On 23 June 2005 the investigator decided to confiscate for security the applicant’s property.

On 10 August 2005 the investigator sent the bill of indictment to the Kentron and Nork-Marash district prosecutor (“the prosecutor”) for approval but on 15 August 2005 the prosecutor refused to approve it and returned the case to the investigator for further investigation.

On 15 October 2005 the investigator initiated another set of criminal proceedings, under Article 178 § 2 (2) of the CC, concerning the acquisition of property rights through fraud by the applicant. On the same day this case was merged with the case on usury.

On 8 and 29 December 2005 respectively the investigator ordered forensic handwriting examinations to be conducted. The results of these examinations were received on 13 and 20 January 2006 respectively.

On 7 March 2006 the investigator decided to amend the applicant’s charges and to bring new charges against him under Article 178 §§ 2 (2) and 3 (1), Article 182 § 3 (2), Article 213 § 2 (1) and (2), and Article 349 § 1 of the CC on account of fraud in large and particularly large amounts, extortion in particularly large amounts, usury performed as a profession which resulted in dire financial consequences for the injured parties, and forgery of evidence.

On the same date the investigator lodged an application with the Kentron and Nork-Marash District Court of Yerevan, seeking to have the applicant detained for a period of two months, which was rejected by the District Court. However, upon an appeal by the prosecutor, on 28 March 2006 the Court of Appeal overturned the District Court’s decision and ordered the applicant’s detention for a period of two months.

On 29 and 30 March and 13 April 2006 the investigator lodged applications with the District Court for a search warrant and to confiscate information covered by bank secrecy. These applications were granted on 29 and 31 March and 13 April 2006.

On 14 July 2006 the supervising prosecutor approved the bill of indictment and the case was sent to the District Court, which took it over on 24 July 2006.

By the District Court’s decision of 18 August 2006 the case was set for trial. Between 25 August 2006 and 11 October 2007, the court held twelve hearings which were adjourned because of the absence of victims and/or witnesses. In addition, on ten occasions the hearings were adjourned because of applications by the prosecutor or on the court’s own motion, and on nine occasions because the applicant’s applications were granted. On three occasions the court decided to have the absent witnesses and/or victims brought by force to the hearing.

On 9 July 2007 the District Court granted an application by the applicant’s counsel to have him released on bail.

On 15 October 2007 the powers of the judge in charge of the applicant’s case were suspended. On 1 November 2007 another judge took over the case and the examination of the case started anew.

Between 21 November 2007 and 23 December 2010, the court held forty hearings which were adjourned because of the absence of the applicant or his lawyer or because of applications lodged by them. In addition, on thirty-five occasions the hearings were adjourned because of the absence of the victims or witnesses or because of applications lodged by them, and on thirty-two occasions because the prosecutor’s applications had been granted or because the court had decided to adjourn the case of its own motion. On five occasions the court decided to have the absent witnesses and victims brought by force to the hearing.

On 28 August 2009 and 12 October 2010 respectively the prosecutor decided to amend the charges and/or to bring new charges against the applicant.

In March and June 2010 the District Court partially granted or refused applications, introduced by the applicant and one of the victims, requesting that it order a forensic examination.

On 31 January 2011 the District Court gave judgement, finding the applicant guilty of five counts of the offences set out in Article 178 § 3 (1) (fraud), Article 182 § 3 (2) (extortion), Article 213 § 2 (1) and (2) (usury), and Article 349 § 1 (forgery of evidence) of the CC and sentenced him to nine years’ imprisonment, confiscated half of his property and imposed a fine of 400,000 Armenian drams (AMD). It appears that during the proceedings the District Court examined forty-seven witnesses, about thirty pieces of documentary evidence and five expert opinions, one of which was ordered by the District Court.

The applicant and the prosecutor appealed against this judgment.

On 3 October 2011 the Criminal Court of Appeal rejected the appeals and upheld the District Court’s judgment.

The applicant’s counsel lodged an appeal on points of law.

On 21 November 2011 the Court of Cassation declared the appeal inadmissible for lack of merit.


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1962 in Jendouba, in the Tunisian Republic (“Tunisia”), and lives in Versoix in the Canton of Geneva.

The facts of the case, as submitted by the parties, may be summarised as follows.

According to the applicant, on 22 April 1992 he was arrested by the Italian police at his place of residence in Italy and taken to the Tunisian Consulate in Genoa, where he was presented with a bill of indictment according to which he represented a threat to Italian State Security. He was then allegedly taken to Tunis by Tunisian agents.

The applicant further submits that he was arbitrarily detained and tortured in Tunis in the premises of the Ministry of the Interior, from 24 April to 1 June 1992, on the orders of A.K., the then Minister of the Interior. He submits that he was subjected to the so-called “roast chicken” position throughout his entire detention and deprived of his basic physiological needs, particularly sleep; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords.

The applicant submits that he suffers from a series of medically attested physical and psychological injuries and problems, and that a causal link between the abuse described and these injuries and problems has been considered plausible.

Following the alleged torture in Tunisia in 1992, the applicant fled that country in 1993 and took refuge in Switzerland, where he applied for political asylum in the same year. The applicant has since been living in the Canton of Geneva.

On 8 November 1995 the Swiss authorities granted the applicant political asylum.

On 14 February 2001, while A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Canton of Geneva (“the Principal Public Prosecutor”), for severe bodily injury, illegal confinement, insults, endangering health, coercion and abuse of authority. The applicant applied to join these proceedings as a civil party seeking damages.

On 19 February 2001 the Principal Public Prosecutor made an order discontinuing the proceedings on the grounds that A.K. had left Switzerland and that the police had been unable to arrest him.

According to the applicant, on 22 July 2003 he “[asked] a Tunisian lawyer to represent him with a view to bringing civil proceedings for compensation against [A.K.] and the Tunisian Republic. On 28 July 2003 the lawyer [informed] [the applicant] that this type of action had never been successful and advised him not to lodge such a claim”.

It was allegedly impossible to lodge a civil action of this sort in Tunisia.

By a writ dated 8 July 2004, the applicant lodged a claim for damages with the Canton of Geneva Court of First Instance (“the Court of First Instance”) against Tunisia and against A.K. He considered that he should be paid 200,000 Swiss francs (CHF), with 5% interest from 1 June 1992, as compensation for the non-pecuniary damage arising from the acts of torture to which he had allegedly been subjected. The applicant submitted that the conditions for reparation of non-pecuniary damage provided for by Articles 82 et seq. of the Tunisian Code of Obligations and Contracts, applicable under Article 133 al. 2 of the LDIP, were met.

On 9 June 2005 a hearing was held before the Court of First Instance; neither of the defendants was in attendance or represented.

In a judgment of 15 September 2005, the Court of First Instance declared the claim inadmissible on the ground that it lacked territorial jurisdiction. The relevant part of the judgment reads as follows:

“With regard to an action in tort based on the unlawful acts that were allegedly committed in Tunisia by the defendants, to the claimant’s detriment, the Swiss courts do not have territorial jurisdiction under international law to examine the complaint, given that the defendants are not domiciled or habitually resident in Switzerland, and given also that no illegal act or detrimental outcome occurred in Switzerland, pursuant to sections 2 and 129 [of the Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below)].”

Under section 3 of the Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below) the Swiss courts did not have jurisdiction by necessity either, given the lack of a sufficient connection between, on the one hand, the case and the facts, and, on the other, Switzerland. In this connection, the Court of First Instance ruled as follows:

“All of the acts for whose after-effects the claimant, a Tunisian national, seeks compensation for non-pecuniary damage were allegedly inflicted on him, as he submits, in Tunisia in 1992, in the premises of the Tunisian Ministry of the Interior, by the Tunisian State and its agents. The sole fact that the claimant applied for and received political asylum in 1995 in Switzerland, where he has since been domiciled, does not amount, in the light of current case-law, to a sufficient connection enabling a “forum of necessity” to be established against the respondents in Switzerland and Geneva.”

By a writ dated 16 November 2005, the applicant appealed against that decision before the Court of Justice of the Canton of Geneva (“the Court of Justice”). His appeal was rejected in a judgment of 15 September 2006. After noting that the appellant had shown that he was unable to bring a civil action in Tunisia, the Cantonal Court considered:

“As the outcome of the present appeal depends on the immunity from jurisdiction of the defendant parties, the question of whether there exists a forum of necessity in the appellant’s place of residence can, however, remain undecided.”

The Cantonal Court also held that the defendants enjoyed immunity from jurisdiction, since the acts of torture had been performed in the exercise of sovereign authority (iure imperii) and not iure gestionis. Referring to the judgment delivered by the Court in the case of Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001XI), it further considered that there had been no violation of the applicant’s right of access to a court.

The applicant lodged an ordinary appeal with the Federal Court, dated 20 October 2006, in which he asked the Federal Court to rule that the courts in the Canton of Geneva had territorial jurisdiction and to find that the defendants did not enjoy immunity from jurisdiction. With regard to the jurisdiction of the Swiss courts, he argued that the purpose of the introduction of a forum of necessity in section 3 of the LDIP (see paragraph 24 below) was to avoid denials of justice, especially in cases of political persecution, and that he had provided sufficient evidence that he could not reasonably bring proceedings before a foreign court. As to the immunity from jurisdiction purportedly enjoyed by Tunisia and A.K., the applicant submitted that the exercise of public power did not include the option of committing international crimes such as torture. In this connection, he specified that the very definition of torture in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereafter: “the Convention against Torture”; see paragraphs 26 et seq. below) ruled out any immunity.

By a judgment of 22 May 2007, the reasoning of which was notified to the applicant on 7 September 2007, the Federal Court dismissed the appeal. Reiterating the reasoning in the first-instance judgment, the Federal Court considered that the Swiss courts did not in any event have territorial jurisdiction. The relevant passages of the Federal Court’s judgment read as follows:

“3.3 In the absence of an ordinary forum, the problem must be addressed under section 3 of the LDIP, which concerns the forum of necessity... Under the latter provision, where no forum is provided for in Switzerland by the LDIP and where proceedings in another country prove impossible or one cannot reasonable require that they be brought in that country, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection have jurisdiction.

The application of this rule for assigning jurisdiction thus calls for three cumulative conditions to be met: firstly, the Swiss authorities do not have jurisdiction under another provision; secondly, legal proceedings in another country are impossible or cannot reasonably be required; and, thirdly, the case in question has a sufficient connection with Switzerland. In the present case, the first condition is indisputably fulfilled. Fulfilment of the second condition appears more problematic, but in the light of the third condition, which merits more extensive discussion, it is not necessary to elaborate further on this question.

3.4 Section 3 of the LDIP, which must be interpreted restrictively ... represents a safety valve, intended to avoid denials of justice in the event of a negative conflict of jurisdiction.

In this connection, the Federal Council, in its authoritative interpretation of this provision, noted that “there are cases that have such a tenuous connection with Switzerland that it is not appropriate to set in motion the entire judicial system in order to resolve them. However, section 3 lays down an exception to this principle. The Swiss authorities must assume jurisdiction even in cases where the connection with our country is very tenuous, where it is impossible to bring proceedings or to lodge an appeal abroad. It is for the claimant or the appellant to demonstrate this impossibility. Where this evidence has been adduced, jurisdiction reverts to the authority of the locality with which the case has a sufficient connection. Where there are several competing fora in Switzerland, it is the first authority before which an action is brought that has jurisdiction. Clearly, the impossibility of bringing and pursuing proceedings abroad can only be examined in the light of the tangible circumstances and of the possible consequences for the individual concerned in the particular case; it will ultimately be for the court to recognise, or not, its jurisdiction” ....

Although section 3 LDIP may thus seem innately paradoxical insofar as proceedings for which there is no basis for connection with an ordinary forum in Switzerland are, ipso facto, lacking in any particular connection with this country, in such a way that determining a “sufficient connection” may prove challenging, and the aim pursued by the law – to prevent a formal denial of justice – is difficult to achieve, this legal provision has not in practice been without effect; the cantonal courts in particular have recognised its applicability it in the areas of family law, inheritance and proceedings on debt-enforcement and bankruptcy...

Moreover, legal writers have noted that the subsidiary forum must necessarily be recognised in situations of political persecution... In contrast, the case-law and legal writings shed scarcely any light with regard to a civil action for compensation in respect of damage resulting from crimes against humanity, life and physical integrity, committed aboard, by foreign perpetrators.

3.5. ...In the present case, however, the claimant complains of acts of torture that were allegedly committed in Tunisia, by Tunisians resident in Tunisia, against a Tunisian residing in Italy. All of the specific features of the case come back to Tunisia, except for the fact of residence in Italy at the relevant time. The facts of the case thus have no connection with Switzerland, so that the question of whether or not the link with this country is sufficient does not arise. In those circumstances, it is not possible to recognise the jurisdiction of the Swiss courts, short of disregarding the clear text of [section] 3 of the LDIP [see paragraph 24 below]. The fact that the claimant then chose to come to Switzerland cannot change anything, since it is a fact subsequent to the events of the case and, moreover, does not form part of it.

Since the absence of a sufficient connection between the facts of the case and Switzerland suffices to establish the Swiss courts’ lack of jurisdiction, the appeal must be dismissed, without it being necessary to examine the issue of immunity from jurisdiction.”

On 14 May 2007 the Versoix Municipal Council gave its consent to the applicant’s naturalisation, and this was confirmed by the town of Versoix on 25 May 2007 following a favourable opinion from the Canton of Geneva of 6 November 2006. It was subsequently confirmed by the authorisation issued by the Federal Migration Office on 21 May 2007.