Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

András Sajó;Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1954 and lives in Sarbice Pierwsze.

On 1 January 1999 the applicant was a victim of a car accident in which he suffered several bodily injuries. He was treated in Hamburg until 27 February 1999.

In the year 1999 the applicant was suspected of having committed several thefts of leased movable goods of considerable value, in particular cars, during the period he spent running a company.

In June 1999 the applicant moved to New Zealand and the proceedings against him were stayed.

On 29 March 2004 the Minister of Justice requested that the applicant be extradited to Poland.

Following an extradition hearing in New Zealand, in 2010 the applicant was transported to Poland.

On 9 March 2010 the applicant was arrested.

On 13 March 2010 the Kielce District Court (Sąd Rejonowy) decided to detain him on remand for a period of three months, until 9 June 2010. The court referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and in respect of which he would face, if found guilty, deprivation of liberty for a term exceeding eight years. It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding until the charges against him became time-barred. The court pointed out that the applicant had not remained at his place of residence, had refused to accept a summons from the prosecutor and, although he was aware that an investigation was being carried out in respect of him, he had moved to New Zealand in 1999 with a view to waiting until the charges that had been brought against him became time-barred; consequently, the proceedings against him had had to be stayed for ten years.

As regards the applicant’s state of health the court found that “the problems cited by the applicant do not require any medical treatment”.

On 7 June 2010 the applicant’s detention was extended until 7 September 2010. The court again referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and on the severity of the penalty to which he would be liable if found guilty. It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding. In this respect the court referred to the fact that the applicant had moved to New Zealand on a previous occasion and had had to be located by means of an international search.

The applicant appealed, referring, among other things, to his state of health. He submitted that he was suffering from serious neurological and orthopaedic problems which, if not treated properly, would pose a serious danger to his health.

On 29 July 2010 the Cracow Court of Appeal (Sąd Apelacyjny) upheld the challenged decision, confirming the Regional Court’s view that the detention had been justified by the severe penalty and the possibility that the applicant might obstruct the proceedings. As regards the applicant’s state of health the court referred to two medical experts’ opinions dated 15 April and 14 June 2010 respectively, according to which the applicant could be treated in the detention facilities and was able to participate in the trial.

On 25 August 2010 the relevant bill of indictment was submitted to the Kielce Regional Court (Sąd Okręgowy).

On 2 September 2010 the Kielce Regional Court extended the applicant’s detention for a further five months, until 4 February 2011. The court justified its decision by citing the high probability that the applicant had committed the offences with which he had been charged. It also found that there was a risk that the applicant might go into hiding or obstruct the proceedings; it did not, however, give any grounds for its findings. Lastly, the court stated that there were “no grounds for releasing the applicant from detention ... in particular, [there were none of the grounds listed] in Article 259 of the Code of Criminal Proceedings”.

On 19 October 2010 the first hearing took place. Further hearings were scheduled for 2 and 30 December 2010, 25 January, 17 February, 17 March, 5 and 28 April, 17 May, 16 June, 14 July, 4 August, 6, 27 and 29 September, 6 and 27 October, 10 and 24 November, and 8 December 2011.

On 25 January 2011 the Kielce Regional Court again extended the applicant’s detention for further five months. Apart from the grounds previously relied on, the court noted that the applicant had requested that several new witnesses be heard and considered that he might influence their testimony if released. The court considered that the applicant’s declarations that he would appear before the court upon each and every summons did not correspond with his previous behaviour. It noted that on 19 October 2010 the applicant had resisted being taken to the court. According to the Government’s submissions he had refused to be taken to the court without a wheelchair which had been provided by his wife. Lastly, the court determined, relying on the opinion of an expert neurologist and orthopaedist, that the applicant could be treated in detention.

The applicant appealed. He referred, among other things, to his state of health, the fact that he had to use a wheelchair, that he was waiting for a spine operation and that he could not undergo physiotherapy under conditions of detention.

On 22 February 2011 the Cracow Court of Appeal upheld the challenged decision relying, as previously, on the fact that in the past the applicant had gone into hiding. The court also found that the applicant had again obstructed the proceedings in that he had refused to be transported to the court hearing without a wheelchair. The Court of Appeal did not uphold the Regional Court’s finding that the applicant might tamper with evidence; this, however, did not influence the court’s overall assessment ’s state of health, the court referred to a medical opinion issued on 28 October 2010 by an expert neurologist and orthopaedist according to which the applicant could participate in the court hearings and could be transported to court without a wheelchair.

On 21 June 2011 the Kielce Regional Court extended the applicant’s detention until 21 December 2011. The court noted that the results of the applicant’s recent treatment in the Łódź Prison hospital ward had been satisfactory and that according to the experts in neurology and orthopaedics (see paragraph 21 above) he could be treated in prison facilities. The applicant appealed.

On 13 July 2011 the Cracow Court of Appeal examined the applicant’s appeal and upheld the challenged decision. As regards the applicant’s state of health, the court, relying on a physician expert opinion of May 2011, considered that there were no obstacles to his further detention and his treatment in the prison facilities. The court noted that if the applicant’s further detention threatened his health he could be released at any time ex officio.

Meanwhile, on 28 June 2011, the applicant underwent a medical examination ordered by the Kielce Regional Court. The applicant arrived for the examination in a wheelchair, from which he could not get up. The Government contested this submission. The doctor found that the applicant suffered from chronic pain of the thoracic and lumbar vertebral column on the basis of multilevel disc osteoarthritis and that he had suffered a spinal injury and left hip injury in 1999 and 2005 respectively. The doctor also ordered a further examination of the applicant, which took place on 16 August 2011. On 16 October 2011 a fresh opinion was delivered, the relevant part of which reads as follows:

“There are obstacles to [an extension of the] stay of the applicant in the Kielce Detention Centre because he cannot receive neurological treatment there ... the results of the electromyography examination (EMG) show a gradually worsening] dysfunction of the peripheral nerves ... which qualifies the applicant for neurological surgery that can only be executed in a neurological ward. After the operation and rehabilitation treatment, depending on his neurological state, the patient will be able to continue his detention in the Kielce detention centre”.

The doctor further stated that an objective assessment of the neurological state of the applicant was not possible due to his lack of cooperation.

On 27 October 2011 the applicant’s lawyer requested that the Kielce Regional Court lift the preventive measure applied to the applicant and to release him from detention. The lawyer referred to the applicant’s state of health. He referred, among other things, to the fact that the Kielce Regional Court had to order breaks in hearings because the applicant had to rest “in a horizontal position”. He also requested that the court order a further examination of the applicant by a specialist in neurology.

On 8 November 2011 the Kielce Regional Court refused the applicant’s lawyer’s requests. The court held that it had already ordered a medical opinion on 2 November 2011 and that that opinion would be delivered soon. The court furthermore found that the circumstances justifying the applicant’s detention had not ceased to exist and that they had already been listed in the court’s decision of 21 June 2011. The court did not find it necessary to repeat them.

On 14 November 2011 a fresh opinion was delivered by a specialist in neurology. The doctor found that:

“1. The applicant’s further stay in detention and refusal of medical (neurological) treatment may constitute a serious danger to his health or even life.

The post-operation rehabilitation should take place in a good rehabilitation ward ... it may also take place in detention, however I do not know in which detention centre such a ward exists.”

On 14 November 2011 the applicant’s lawyer lodged an appeal against the court’s decision of 8 November 2011. He requested the court, in the event that the appeal was not granted, to change the preventive measure applied to the applicant and to impose bail on him of a “reasonable amount”.

On 22 November 2011 the Kielce Regional Court, sitting as a panel of three judges, upheld the challenged decision. The court held that the Kielce Regional Court, which made a decision in first instance in composition of single judge, had been aware of the applicant’s state of health and that this matter had been taken into account each time his detention had been extended. Apparently, the court had not yet become aware of the medical expert opinion of 14 November 2011.

On 8 December 2011 the Kielce Regional Court, acting ex officio, released the applicant and imposed another preventive measure on him, namely that of police supervision. The court found that the grounds originally relied on to impose and extend the applicant’s detention, in particular the risk that he might go into hiding, still existed. However, given the applicant’s state of health, his release was necessary. The court referred to a medical opinion which was completed and issued on 14 November 2011 (see above). It was determined that the only neurological ward in which the applicant could be treated in detention was at the Gdansk Remand Centre. The applicant, however, refused to agree to be operated on there. He undertook at the same time that if he were to be released, he would undergo such an operation once he was at liberty. He also indicated the address where he could be reached and where he would collect his correspondence.

On 8 December 2011 the applicant was released from detention.

According to the last information available to the Court, the criminal proceedings against him are still pending.

Between 12 and 20 January 2016 he was hospitalised again in a hospital in Katowice.

According to the applicant’s submissions, at the time of his deportation to Poland from New Zealand the whole documentation pertaining to his case – including his medical file and information about medications that he was taking – had been handed over to the Polish authorities.

As stated by the Government and not contested by the applicant, the applicant had undergone a preliminary examination on 11 March 2010 and at that time he had not informed the doctor of any illness. He stated that he felt well. He had informed the prison authorities of his previously incurred injuries only after he had been detained at the Kielce Remand Centre. As stated by the Government and not contested by the applicant, the applicant had an easy access to the shower.

On 23 March 2010 the applicant was examined by the neurologist for the first time. He was advised to continue his pharmacological treatment (he had his own medications) and to use a hard mattress.

On 26 April 2010 the applicant was examined by a physician. He complained of problems with walking and was therefore prescribed crutches. The applicant submitted that he had been prescribed crutches after he had collapsed on the floor in cell no. 114 at the Kielce Remand Centre.

On 1 June 2010 the applicant underwent a further neurological examination. The relevant note made by the doctor read:

“He claims that he does not have the proper mattress (prescribed on 23 March 2010). Declares [that he has] pain in his left leg ... during the examination [he did] not follow simple orders but afterwards stood up without any problems (sprawnie) on his own. He walks with the aid of crutches”

On 17 June 2010 the applicant collapsed while being questioned at the police station. He was then taken to hospital.

On 28 June 2010 the physician considered it necessary to conduct a CAT scan of the applicant’s spine. The examination took place on 30 June 2010.

On 30 July 2010 the applicant consulted a neurosurgeon who, after seeing the results of the CAT scan, found no grounds for the applicant to undergo a spine operation. He advised pharmacological treatment and physiotherapy.

On 25 August 2010 the applicant requested a wheelchair. According to the Government the director of the facility’s health centre found no grounds for granting his request.

According to the applicant’s submissions on 31 August 2010 he again collapsed on the floor in the corridor of block X of the Kielce Remand Centre. Only then was he prescribed a wheelchair. However, since the chair which he received in the detention centre was, according to his submission, in such a state that its use constituted a danger for persons using it, the applicant requested his wife to provide him with another wheelchair; this she did, on 8 October 2010, with the approval of the prison authorities. The Government submitted that the approval was granted for “social reasons” although there were no medical grounds for so doing. However, the applicant submitted copies of two medical certificates dated 31 August 2010, together with a note made by a psychiatrist, which read:

“The patient collapsed in the corridor (lost consciousness?) ... Patient in generally good condition.

- Wheelchair.

- Neurological examination”

The applicant submitted another note made by a neurologist, which read:

“Today [he] lost consciousness. He complains of pain in his left hip joint.”

The applicant submitted a copy of the record of the questioning of a certain S.L. for the purpose of civil proceedings for compensation which the applicant had instituted against the State Treasury. S.L., who had been placed in the same cell as the applicant between July and December 2010, testified, in so far as relevant, as follows:

“Our cell was on the [first] floor; one had to climb a long flight of stairs. The applicant used a wheelchair. I and J. (another cell inmate) would carry the applicant up these stairs. When J. was not there one of guards would come and help us out.”

On 19 October 2010 the applicant resisted being taken to the court hearing without a wheelchair.

On the same day a doctor examined the applicant at the request of the Kielce Regional Court. The relevant parts of the medical certificate issued after the examination read as follows:

“Today he claims that his left leg is weak [and that] he has pain in his lumbar spine. ... While undressing, he easily lifts his legs without manifesting pain. When he stands up he drags his left leg and claims that he cannot stand on that leg because it is weak.

In the detention he occasionally (okresowo) uses a wheelchair; however, during none of the neurological or neurosurgeon consultations was it determined that the applicant needed to use a wheelchair.

In connection with the pain reported by the applicant and the results of his medical examinations, the specialist opinion of an expert neurosurgeon or neurologist is necessary in order to determine whether the applicant may be transported to court without a wheelchair. Aggravation possible.”

On 18 February 2011 the applicant complained about the pain in his spine and he was transported to Łódź prison no. 2, where he underwent treatment in the prison hospital. He remained there until 21 April 2011.

During his stay in the prison hospital he remained in a cell which had been adapted for detainees using wheelchairs. According to the Government’s submissions not contested by the applicant he had the assistance of professional “carriers” when he wanted to go to the exercise yard (the Government did not explain what exactly should be understood under that notion, in particular whether the “carriers” referred to above were the prison guards or other prison staff). He attended various forms of kinesiotherapy, including exercises to strengthen the muscles of his legs, and various other forms of treatment. He also consulted a dermatologist, orthopaedist, neurologist and ophthalmologist.

After his release from the prison hospital the applicant was advised to continue performing the exercises he had been taught. From 21 April 2011 until his release on 8 December 2011 he was again detained in the Kielce Remand Centre.

As emerges from the decision of 10 January 2012 about the degree of the applicant’s disability, he was moderately disabled and able to work in special conditions. He did not need constant assistance of another person.


No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant is a German national who was born in 1948 and lives in Ulrichstein.

On 1 August 2001 the Civil Partnership Act (Gesetz über die eingetragene Lebenspartnerschaft) entered into force and introduced civil unions for same-sex couples.

On 5 October 2001 the applicant entered into a civil partnership with Mr Peter, né V.

On 22 June 2002 Mr Peter, né V., died.

In September 2002 the applicant applied for a survivor’s pension to the German Pension Fund (Bundesversicherungsanstalt für Angestellte), a public-law corporation.

On 19 November 2002 the German Pension Fund rejected the applicant’s claim and on 28 February 2003 it dismissed the administrative appeal lodged by the applicant against that decision.

On 19 March 2003 the applicant applied to the Fulda Social Court for judicial review. He argued that the term “widow or widower” in Article 46 §§ 1 and 2 of the Social Security Code, Book VI (Sozialgesetzbuch Nr. VI) should be construed as encompassing the surviving partner in a civil partnership.

On 26 November 2004 the Fulda Social Court dismissed the applicant’s claim. According to the court the surviving partner in a civil partnership could not be called a “widower” in the generally accepted sense of the term. Furthermore, the applicant’s civil partnership had not lasted longer than a year, which would have led to statutory exclusion from the benefit even for married couples.

During the appeal proceedings the respondent acknowledged the applicant’s claim to a survivor’s pension as of 1 January 2005, when the relevant amendments to the Civil Partnership Act became effective.

The remaining leapfrog appeal on points of law (Sprungrevision) was dismissed on 13 December 2005 by the Federal Social Court. The court pointed out that the respondent had partly acknowledged the applicant’s claim, so that the appeal concerned only the period from July 2002 until December 2004.

On 20 January 2006 the applicant lodged a constitutional complaint (no. 1 BvR 170/06) with the Federal Constitutional Court.

On 7 July 2009 the Federal Constitutional Court delivered its judgment in a case (no. 1 BvR 1164/07, hereinafter “the 2007 case”) which had been brought in 2007 concerning the pension rights of a surviving partner in a civil partnership. It found that denying a partner in a civil union the right to a survivor’s pension from the civil servants’ pension scheme, when the legislature had already amended Article 46 §§ 1 and 2 of the Social Security Code, Book VI, in respect of the general pension scheme, violated the principle of non-discrimination as set down in Article 3 of the Basic Law.

On 1 December 2009 the applicant pointed to the above-mentioned judgment and requested a decision to the same effect.

On 11 June 2010 a three-judge panel of the Federal Constitutional Court decided not to review the applicant’s constitutional complaint. In its reasoning the panel explained that the complaint did not raise a pressing constitutional question as the relevant provision of the social security legislation had meanwhile been amended. Even assuming that the legislative provision concerned had violated the Constitution, the Federal Constitutional Court could not have afforded redress as the legislature could not be required to amend a provision that had already become void.

On 13 July 2010 the applicant was served with a copy of the decision.

On 7 December 2011 the Government informed the Court that in response to the pilot judgment in Rumpf v. Germany (no. 46344/06, 2 September 2010) an Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) had been published in the Federal Law Gazette and had entered into force on 3 December 2011.

In December 2011 the Court informed the applicant of the enactment of the new domestic remedy and drew his attention to the transitional provision of that Act. Referring to the Brusco v. Italy case ((dec.), no. 69789/01, ECHR 2001IX), the Court invited the applicant to inform it whether he intended to make use of the new remedy within the time-limit set by the transitional provision in question.

The applicant informed the Court that he intended to file a complaint under the new domestic provisions.

On 6 February 2012 the applicant filed a complaint under the new Act, claiming compensation in respect of pecuniary and non-pecuniary damage. He complained that constitutional court proceedings that lasted four years, six months and one day were excessively long, even taking the position and function of the Federal Constitutional Court into account. He pointed out that his case could not be considered a particularly difficult one.

In the course of the proceedings the judge rapporteur for the constitutional complaint submitted a statement explaining that when he took office and became judge rapporteur for this complaint on 1 October 2007 it had already been agreed between his predecessor and judge B., who was judge rapporteur for the 2007 case (compare paragraph 16, above), that the handling of the applicant’s complaint should be postponed until the 2007 case had been determined. Subsequently, it became clear that the 2007 case did not pose a problem of retroactivity and therefore did not affect the outcome of the applicant’s constitutional complaint. The judge rapporteur conceded that the applicant’s submissions were sufficiently substantiated for his constitutional complaint to indeed have been dealt with earlier on the basis of the actual reasoning given. However, the judge maintained that it had been in the applicant’s best interest to wait for the court’s ruling in the 2007 case.

The applicant replied that the judge rapporteur’s statement demonstrated that his constitutional complaint had not been given any attention whatsoever in the first year after it was lodged. It would have been obvious even from a cursory examination of the constitutional complaints that his complaint concerned the retroactive application of a legislative amendment. Therefore, any proper comparison of his case with the 2007 case would have easily shown that the two cases were not interdependent.

On 1 October 2012 the complaints panel of the Federal Constitutional Court dismissed the applicant’s complaint under section 97a of the Federal Constitutional Court Act. Citing Gast and Popp v. Germany (no. 29357/95, ECHR 2000II), as well as Klein v. Germany (no. 33379/96, 27 July 2000), the Federal Constitutional Court noted that a chronic backlog of cases in the constitutional courts could not justify the excessive length of proceedings. However, when assessing whether the duration of proceedings was excessive, the Federal Constitutional Court had to consider its special function and position. Unlike the ordinary courts, the capacity and structure of a Constitutional Court were laid down in the Constitution and it served further purposes beyond the administration of individual justice. The scope for adaptation and for the acceleration of proceedings was therefore limited. Furthermore, decisions and judgments of the Federal Constitutional Court had binding inter omnes legal effect and for this reason had to be drafted with the utmost diligence. The court further explained that it was in the nature of constitutional court proceedings that chronological case management was of subordinate importance. Concerning the applicant’s case, the court noted that the actual duration of the proceedings – four and a half years – was unusually long, but not excessive. For the purposes of its examination the Federal Constitutional Court noted that three phases could be distinguished: (a) the phase of over one year between the lodging of the constitutional complaint and the decision to await the outcome of the 2007 case; (b) the phase of two years until a decision had been given in the 2007 case; and (c) the phase of eleven months until the constitutional complaint at issue had been determined. A new judge rapporteur had stepped in at the end of his predecessor’s term of office and his predecessor had had to finish cases of higher priority than that of the applicant. The court maintained that the twelve-month wait in accordance with section 97b §1 of the Federal Constitutional Court Act had not been excessive considering that the Federal Constitutional Court had opted to rule on a similar case concerning the pension rights of surviving partners in a civil union (the 2007 case) before the applicant’s case. The court pointed out that, although in hindsight the present case could have been decided without reference to the “pilot case”, the two cases shared sufficient similarities to justify the decision of the former judge rapporteur. Nothing indicated that the decision to postpone the applicant’s case pending a decision on the 2007 case had been based on arbitrary considerations. The court noted that the applicant had never claimed that the sum of money at issue was of extraordinary financial importance to him. In conclusion, the Federal Constitutional Court argued that after the decision in the 2007 case the applicant’s constitutional complaint had been determined in due time, without any delay.

The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, “the Remedy Act”) was published in the Federal Law Gazette – Part I, 2011, pp. 2302 et seq. – on 2 December 2011 and entered into force the next day.

The Remedy Act introduced general provisions instituting a remedy against any kind of protracted court proceedings. Section 1 applied to criminal and civil proceedings – for details see Taron v. Germany (dec.), no. 53126/07, §§ 19 et seq., 29 May 2012, and Garcia Cancio v. Germany (dec.), no. 19488/09, §§ 27 et seq., 29 May 2012.

For proceedings before the Federal Constitutional Court, section 2 of the Remedy Act amended the Federal Constitutional Court Act as follows:

“Section 97a

(1) Any person who, as the result of the unreasonable length of proceedings before the Federal Constitutional Court, experiences a disadvantage as a participant in those proceedings or as a participant in proceedings suspended for the purpose of obtaining a decision from the Federal Constitutional Court shall be afforded reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case, having due regard to the functions and the position of the Federal Constitutional Court.

(2) A non-pecuniary disadvantage shall be presumed in cases where proceedings before the Federal Constitutional Court have been of unreasonable length. Compensation may be claimed therefor save in particular cases where reparation by other means, such as the mere finding that the length of proceedings was unreasonable, is sufficient. Such compensation shall amount to €1,200 for every year of delay. If the sum thus calculated is not equitable, the Federal Constitutional Court shall assess a higher or lower sum.

Section 97b

(1) A decision on compensation and reparation shall be rendered if a complaint of undue delay has been lodged with the Federal Constitutional Court. A complaint of undue delay shall be admissible only if the complainant has previously objected to the length of the proceedings before the Federal Constitutional Court (Verzögerungsrüge).

A complaint of undue delay shall be lodged in writing and it shall set out the circumstances purported to establish the unreasonableness of the length of the proceedings. It shall be admissible twelve months at the earliest after the case has been lodged with the Federal Constitutional Court. A complaint of undue delay shall not require a reasoned notification.

Section 97d

(1) The rapporteur in the proceedings concerned shall submit an opinion within one month of receipt of the reasons for the complaint of undue delay.

(2) The complaints panel shall decide by a majority. In the event of a tie the complaint of undue delay shall be dismissed. The complaints panel shall render its decision without an oral hearing. Reasons need not be given.

(3) The decision is not subject to appeal.”

In a departure from the general transitional provision under section 23 of the Remedy Act (see for details Taron, § 27, and Garcia Cancio, § 36, both cited above), section 97e of the amended Federal Constitutional Court Act stipulated that, in the case of terminated proceedings whose length might still become or had already become the subject of a complaint before that court, it was not necessary to raise a complaint of undue delay (Verzögerungsrüge) prior to filing a complaint claiming compensation. That complaint had to be lodged with the Federal Constitutional Court by 3 June 2012 at the latest.


Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The applicant was born in 1961.

On 10 October 2003 a deputy prosecutor in Tashkent, Uzbekistan, added the applicant’s name to the list of fugitives from justice and issued an arrest warrant on suspicion of human trafficking with the purpose of sexual exploitation.

On 26 February 2009 the applicant was arrested in Russia.

On 28 February 2009 the Pechorskiy District Court in the Pskov Region ordered the applicant’s detention pending extradition, referring to Articles 108 and 466 of the Code of Criminal Procedure but without setting a time-limit.

On 16 March 2009 the Russian Prosecutor General’s office received a request for the applicant’s extradition from his counterpart in Uzbekistan.

On 15 May 2009 the deputy Russian Prosecutor General ordered the applicant’s extradition to Uzbekistan.

The applicant challenged the extradition order before the Pskov Regional Court. On 26 June 2009 the Regional Court found that the extradition order was lawful. On 17 August 2009 the Supreme Court of the Russian Federation upheld the decision on appeal.

On 17 October 2009 the applicant was extradited to Uzbekistan.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)

The applicant was born in 1972 and lives in Paris.

She has been living with her daughter and brother in a flat in the Paris area since 2003. By a decision of 12 February 2010, served on 12 March 2010, the Paris mediation commission, finding that the applicant and her relatives were housed in indecent and insalubrious conditions, earmarked their case as a priority for urgent rehousing.

As she had not received any offer of accommodation taking account of her needs and capacities six months after the date of that decision, the applicant lodged an application with the Paris Administrative Court seeking an order for the State to provide her with housing, on pain of a fine.

On 28 December 2010 the Administrative Court upheld her application and instructed the prefect of the Île-de-France region to rehouse the applicant, her daughter and her brother, on pain of a fine of 700 euros (EUR), payable to the urban development fund for the Île-de-France region, for each month’s delay from 1 February 2011 onwards. The Administrative Court found as follows:

“It emerges from the investigation that a safety architect employed by the Paris Police Commissioner’s Office noted on 9 July 2009 that the kitchen ceiling in the flat occupied by [the applicant], her daughter and her brother was in a dangerous state as it was unstable and weak. Her request should therefore be granted as a matter of particular urgency.”

On 31 January 2012, as the applicant had still not been rehoused, the Administrative Court assessed the interim amount of the fine for the period from 1 February 2011 to 31 January 2012 and ordered the State to pay EUR 8,400 into the urban development fund for the Île-de-France region.

As matters stand, the applicant and her family have still not been rehoused.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant, Mr N.F., is an Afghan national, who was born in 1961 and lives in the Netherlands. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Ms A.M. van Eik, a lawyer practising in Amsterdam.

The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

summarised as follows.

On 19 January 2001 the applicant applied for asylum in the Netherlands. On the same date he was interviewed about his identity, nationality and travel route.

On 28 February 2001 and 1 May 2003 the applicant was interviewed about his asylum account (nader gehoor). He claimed inter alia that he had not seen his wife and their two children since 1998 and that he had been a professional military officer. Between 1984 and 1992 – when the Mujahideen came to power – he had worked for the KhAD/WAD (Khadimat-e Atal-at-e Dowlati/Wezarat-e Amniyat-e Dowlati). In 1987 he had also become a member of the communist party (People’s Democratic Party of Afghanistan; PDPA). In 1994, in order to flee the unstable situation in Kabul and the Mujahideen, the applicant and his family had moved to Mazar-i-Sharif. After the second Taliban invasion of Mazar-i-Sharif on 8 August 1998, his problems had started. He had been arrested by three armed Taliban, he had been kicked, beaten and taken to a house. Suddenly the Taliban had left. As the door of the house had been unlocked, the applicant had simply walked off. He had then fled to an uncle with whom he had stayed. On 22 November 2000 the Taliban had raided his uncle’s house. The applicant had been taken by them and held at a control post where he had been ill-treated under questioning. He had been released on 25 November 2000 after his uncle had managed to bribe some Taliban. Fearing that he would be killed in Afghanistan on account of his work for KhAD/WAD, his PDPA membership and his Tajik ethnic origins, the applicant had fled to the Netherlands where he arrived on 15 January 2001.

In December 2001 the applicant converted to Christianity and was baptised.

On an unspecified date the applicant’s wife and their two eldest children travelled to the Netherlands and applied for asylum. They were granted asylum and on an unspecified subsequent date were granted Dutch citizenship. A third child has been born to the applicant and his wife in the Netherlands.

On 14 August 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) issued an intention (voornemen) to reject the applicant’s asylum application and to hold Article 1F of the 1951 Refugee Convention against him. The Minister based this decision on the applicant’s statements about his career from 1981 to 1992 as an officer in the KhAD/WAD in which he had last held the rank of major, and on a general official report (algemeen ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) On the basis of this report, the Netherlands immigration authorities adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD.

On 11 September 2003 the applicant submitted his written comments on the intention (zienswijze), arguing that it would be unjust to hold Article 1F against him as he did not have personal knowledge of the crimes committed by the KhAD/WAD and he had never participated in such crimes.

On 2 May 2006 an additional interview (aanvullend gehoor) was held with the applicant, mainly about his conversion to Christianity and whether his expulsion to Afghanistan would expose him to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention.

By letter of 28 June 2007, following the additional interview of 2 May 2006, the Deputy Minister of Justice (Staatssecretaris van Justitie; “the Deputy Minister”; the successor to the Minister for Immigration and Integration) notified the applicant of her intention to reject his asylum application by holding Article 1F of the 1951 Refugee Convention against him. The Deputy Minister held that the applicant had failed to demonstrate that he, if expelled to Afghanistan, would be exposed to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention. According to the official report of the Ministry of Foreign Affairs of 31 January 2007 not all former members of the KhAD/WAD ran such a risk. The applicant had failed to establish that specific groups were looking for him. Furthermore, it could not be said that his conversion to Christianity would give rise to such a risk. The Deputy Minister further notified the applicant of her intention to impose an exclusion order (ongewenstverklaring) on him.

On 26 July 2007 the applicant submitted his written comments on the intention. He argued that he had a real and personal risk of being subjected to treatment contrary to Article 3 upon return to Afghanistan as the Taliban were looking for him, because of his involvement in the KhAD/WAD as well as because of his conversion to Christianity which was known in Afghanistan.

By decision of 21 August 2007 the applicant’s asylum application was refused by the Deputy Minister, Article 1F of the 1951 Refugee Convention being held against him on account of his involvement with the KhAD/WAD. In addition, an exclusion order was imposed on him. As regards Article 3 of the Convention, the Deputy Minister concluded that the applicant had not established that he had a well-founded fear of being exposed to a real risk of treatment prohibited by this provision.

On 13 September 2007 the applicant filed an appeal with the Regional Court (rechtbank) of The Hague against the rejection of his asylum request and, on 3 October 2007, he lodged an objection (bezwaar) with the Deputy Minister against the imposition of the exclusion order.

The Deputy Minister rejected this objection on 14 March 2008 and, on 19 March 2008, the applicant filed an appeal against this decision with the Regional Court of The Hague.

By judgment of 24 April 2008 the Regional Court of The Hague sitting in Assen declared inadmissible the applicant’s appeal against the rejection of his asylum application. As under domestic law an alien cannot have legal residence if an exclusion order has been imposed, the Regional Court found that the applicant had no legal interest in a determination of his appeal. On 23 May 2008, the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).

In its judgment of 6 May 2008, the Regional Court of The Hague sitting in Assen rejected the applicant’s appeal against the exclusion order. On 29 May 2008, the applicant filed a further appeal with the Administrative Jurisdiction Division.

On 6 May 2008, at the request of the applicant, the Chamber decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Afghanistan (Rule 39 of the Rules of Court) until 21 May 2008.

On 20 May 2008 the Chamber prolonged the measure under Rule 39 of the Rules of Court until further notice. On that same date the Government were invited to submit observations on the admissibility and merits of the case.

On 17 September 2008 the Administrative Jurisdiction Division rejected the applicant’s appeal against the judgment of 24 April 2008. In this ruling, the Division held that the alleged violation of the applicant’s rights under Articles 3 and 8 of the Convention on account of his expulsion from the Netherlands were to be determined in the still pending proceedings concerning the imposition of the exclusion order. No further appeal lay against this ruling.

On 23 October 2008, the Deputy Minister withdrew her decision of 14 March 2008 in which she had rejected the applicant’s objection of 3 October 2007 against the imposition of the exclusion order. As the object of the administrative appeal proceedings had thus ceased to exist, the Administrative Jurisdiction Division decided on 5 December 2008 to declare inadmissible the applicant’s further appeal of 23 May 2008.

In a fresh decision taken on 12 March 2009 and a pertaining addendum of 17 March 2009, the Deputy Minister again rejected the applicant’s objection of 3 October 2007. The Deputy Minister considered that, as Article 1F of the Refugee Convention was being held against him, the applicant could be considered as constituting a danger to national security. However, the Deputy Minister did accept that the applicant, if removed to Afghanistan, would be exposed to a real and personal risk of being subjected to treatment in breach of Article 3 of the Convention upon return to Afghanistan. However, this could not lead to the applicant being granted a residence permit.

The applicant filed an appeal against this decision with the Regional Court of The Hague. On 7 June 2012, this appeal was heard before the Regional Court of The Hague sitting in Amsterdam. It decided to adjourn the appeal to allow the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) to replace the exclusion order by an entry ban within the meaning of Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals). The appeal before the Regional Court is presumably still pending as no further information about these proceedings has been submitted.

On 5 September 2012 the Court of Justice of the European Union (“ECJ”) gave judgment in Joined Cases C-71/11 and C-99/11, Bundesrepublik Deutschland v Y and Z. In this judgment the ECJ held that for the purpose of determining which acts of interference with freedom of religion may be regarded as constituting persecution, it is unnecessary to distinguish acts that interfere with the ‘core areas’ (‘forum internum’) of the basic right to freedom of religion, which do not include religious activities in public, from acts which do not affect those purported ‘core areas’. According to the ECJ, acts which may constitute a ‘severe violation’ within the meaning of Article 9 (1)(a) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection guaranteed (“the Qualification Directive”) include serious acts which interfere with one’s freedom not only to practice one’s faith in private circles but also to live that faith publicly.

On 30 November 2012 the Administrative Jurisdiction Division handed down a ruling, in proceedings unconnected to the applicant, in which it applied the ECJ judgment of 5 September 2012.

By letter of 13 December 2012 the Netherlands Government were requested to inform the Court what, if any, practical consequences they drew from the rulings of 5 September 2012 and 30 November 2012 in relation to the pending case.

In its reply of 6 March 2013 the Government requested the Court to strike the application out of the list of pending cases, submitting the following:

“By decision of 11 March 2009 it was established that the applicant runs a real risk of treatment contrary to Article 3 of the Convention upon returning to Afghanistan. Consequently, the applicant will not be removed to Afghanistan. Since Article 1F of the Refugee Convention applies to him, the applicant is not eligible for an asylum permit. This conclusion is unaffected by the judgment delivered by the Court of Justice of the European Union on 5 September 2012.”

In his comments of 15 April 2013, the applicant objected to the Government’s request to strike the application out of the list of cases.

The relevant domestic law and practice as regards asylum proceedings, exclusion orders and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-32, 25 September 2012).


Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr J.G., is an Afghan national, who was born in 1985. He is currently living in the Netherlands. The Acting President decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 4). He is represented before the Court by Ms Y. Coenders, a lawyer practising in Oss.

The applicant was born in Ghazni and is of Hazara ethnicity. Like the majority of the population in Afghanistan, he was a Muslim. He entered the Netherlands on 18 September 2003 and lodged a first asylum application on 18 October 2003, submitting, inter alia, that he had fled his village of origin following a dispute between his family and a local warlord over landownership, in the course of which his father and brother had fallen victim to vendetta killings and the applicant’s life had been threatened. It appears that that asylum application and a consecutive second asylum application lodged in August 2006 ended unsuccessfully for the applicant, with the relevant authorities considering that the applicant’s statements about the killing of his father and brother lacked credibility. Stating that these first two asylum proceedings are unrelated to the present application, the applicant has not submitted any further documents in this regard other than copies of reports from his first two interviews with the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst). It nevertheless appears from the other documents in the file that the first asylum request was rejected on 31 March 2004 and that the appeal against that decision was upheld on 22 September 2004. The request was once more rejected on 13 June 2005, and the subsequent appeal dismissed on 27 March 2006. The second asylum application was rejected on 18 August 2006 and the appeal against that decision was dismissed on 6 September 2006. It further appears that, although possible, no further appeal was lodged in the proceedings on either the first or the second asylum request.

On 1 April 2008 the applicant lodged a fresh asylum application. Interviews were held with him by the Immigration and Naturalisation Service on 1 April and 4 June 2008. The applicant submitted – in addition to his previous submissions regarding the local warlord in his village of origin – that he had converted to Christianity during his stay in the Netherlands and that, as a consequence, he ran an additional real and individual risk of treatment contrary to Article 3 if he were to return to Afghanistan. In support of his claim, the applicant submitted a baptism certificate dated 23 December 2007 issued by the Kores Church in Apeldoorn. He further submitted, inter alia, that his first encounter with the Christian religion had been in a reception centre for asylum-seekers. He had visited a church for the first time out of curiosity in the last months of 2003 together with some Christian Afghans. While staying in different facilities, the applicant had gradually started to gain more Christian acquaintances; they had brought him a Bible and other reading material about the Christian religion, not only in Dutch but also in Dari and Pashto. The Bible had helped him particularly when he had been placed in immigration detention. He considered that love was the essence of the Christian religion, and in his daily life he tried to abide by the rules set out by Jesus, for example to love people and to treat them well.

On 5 September 2008 the Deputy Minister of Justice (Staatssecretaris van Justitie) notified the applicant of her intention (voornemen) to reject his asylum application as she found his conversion to Christianity not credible. The Deputy Minister noted that it appeared from the applicant’s submissions that he had already been interested in Christianity in 2003, an interest which had grown in the course of the ensuing years and in particular through his contacts with another Afghan convert between 2005 and the middle of 2006. Yet he had nevertheless failed to mention such interest in the course of the proceedings on either his first asylum application or his second, and in those latter proceedings he had been registered as a Muslim – albeit a non-practising one – without the applicant giving any indication of his interest in a different religion. It also did not appear from the file relating to the applicant’s immigration detention that he had developed an interest in Christianity and neither had he made any mention of such in meetings with the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice.

In his comments (zienswijze) on the Deputy Minister’s intended refusal of his asylum application, the applicant submitted, inter alia, that he had replied “no” when he was asked in the interview pursuant to his second asylum application whether he was a practising Muslim. As he had not yet been baptised at that time, he had felt unable to say that he was a Christian. Moreover, when he had tried to explain to the officer of the Departure and Repatriation Service for what reasons he was unable to return to Afghanistan, he had been told that that Service was not concerned with such issues.

The Deputy Minister was not persuaded by the applicant’s comments and rejected the asylum request on 15 October 2008. In addition to the fact that the applicant’s alleged conversion was not believed, the Deputy Minister further considered that the alleged problems in the applicant’s village of origin had already been found to lack credibility in the previous asylum proceedings, while neither the applicant’s ethnicity nor the general security situation in Afghanistan gave rise to an assumption that he would be at risk of any treatment contrary to Article 3 if he were to return to that country (taking into account that Hazaras constituted the majority of the population of Ghazni where the applicant hailed from).

The applicant lodged an appeal against the Deputy Minister’s decision. In these proceedings, the Deputy Minister submitted, inter alia, that she considered it remarkable that the applicant, while he had been held in immigration detention, had made no mention of his interest in Christianity or of the problems which might arise as a result if he were expelled, yet he had been baptised three days after his release from detention. The Deputy Minister considered it likely that the applicant had let himself be baptised for effect only and found it implausible that he had genuinely converted.

Following a hearing on 17 September 2009, which was held in the presence of the applicant and counsel, the Regional Court (rechtbank) of The Hague dismissed the applicant’s appeal on 15 December 2009. It held that, pursuant to the case-law of the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State, hereinafter “the Division”), it could only review the impugned decision if the applicant had based his latest request for asylum on newly emerged facts or altered circumstances or if a relevant change in the law had occurred. The Regional Court agreed with the Deputy Minister’s finding that, notwithstanding the baptism certificate and an affidavit of the officiating minister (voorganger) of the Kores Church (to the effect that the applicant was an active member of that church), which had been submitted by the applicant, he had failed to demonstrate convincingly that he had converted to Christianity. This being the case, the alleged conversion could not be seen as constituting a newly emerged fact or altered circumstance. The Regional Court further held that the applicant had also not submitted any other arguments or documents on the basis of which the rejection of his earlier asylum application ought to be reconsidered.

A further appeal lodged by the applicant was dismissed by the Division on 22 October 2010 on summary grounds.

On 17 February 2011 the applicant lodged yet another asylum application, about which he was interviewed by the Immigration and Naturalisation Service on 21 February 2011. He submitted – in addition to his previous submissions – that his Christian beliefs had intensified, that he had been attending church services and Bible lessons and that he had converted others. He further submitted, inter alia, a certificate of attendance of a Bible studies course and a new affidavit of the officiating minister of the Kores Church dated 26 December 2010, stating that the applicant was a member of that church who attended its services, and affidavits of four Afghans stating that they had been converted by the applicant. Furthermore, he claimed that he had received threats from other Afghans in the Netherlands and in Afghanistan via telephone after he had told his mother, a nephew and others about his conversion and had tried to convert them. Lastly, the applicant referred to the deteriorating general security situation in Afghanistan.

On 2 May 2011, the Minister for Immigration, Integration and Asylum Policy (Minister voor Vreemdelingenzaken en Integratie; the successor to the Deputy Minister of Justice as regards immigration matters) rejected the asylum request, considering that the documents submitted by the applicant could not be regarded as evidence of the applicant’s true conversion and holding that the applicant was (still) unable to provide an insight into the motivational process that had led to his alleged conversion. The assertion that his conversion had become known in Afghanistan was dismissed, as the Minister found the applicant’s statements in this regard inconsistent. Lastly, the Minister noted as a negative against the applicant that although he had had the opportunity to submit this information already during his previous asylum proceedings, he had failed to do so. As the applicant had thus still not made a plausible case for believing that his conversion was genuine, the Minister concluded that he was not eligible for asylum. Concerning the security situation in Afghanistan, particularly in the applicant’s home town of Ghazni, the Minister considered that although this might have deteriorated, it had not reached a level in which an Article 3 risk was to be assumed on account of a person’s mere presence in that place. The applicant lodged an appeal against the Minister’s decision.

At a hearing held before the Regional Court on 23 August 2012 in the presence of the applicant and counsel, two members of the Kores Church called as witnesses for the applicant testified about the latter’s church activities. On 4 July 2014 the Regional Court dismissed the applicant’s appeal, concurring with the Minister that his submissions did not repair the lack of credibility and lack of insight given regarding the motivational process around his alleged conversion, which had been observed in the previous asylum proceedings. The Regional Court concluded that the applicant had neither submitted any newly emerged facts or altered circumstances nor such exceptional circumstances relating to Article 3 of the Convention that it would be justified to proceed to a review of the impugned decision.

The applicant lodged a further appeal with the Division.

On 7 October 2014, the applicant was placed in immigration detention for removal purposes. Additionally, on that same day, a return decision (terugkeerbesluit) was taken and an entry ban (inreisverbod) of two years was imposed on the applicant by the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie; the successor to the Minister for Immigration, Integration and Asylum Policy as regards immigration matters).

The application was lodged with the Court on 29 October 2014 and subsequently, on 4 November 2014, the applicant asked the Court to issue an interim measure under Rule 39 of the Rules of the Court staying his removal until his further appeal with the Division and his application with the Court had been decided upon.

On 5 November 2014, the Acting President of the Section decided to reject the request for an interim measure.

According to a letter received by the Registry on 12 March 2015, the further appeal by the applicant (see paragraph 14 above) was dismissed by the Division on 5 November 2014.

From a letter of the Deputy Minister of Security and Justice, dated 14 January 2015 and addressed to Mr J.S. Voordewind, a member of the Christian Union (ChristenUnie) lower house parliamentary party (Tweede Kamerfractie), it appears that the latter had, on 17 November 2014, asked the Deputy Minister to reconsider the applicant’s asylum request. Mr Voordewind had apparently noted that the applicant had started attending a different church one and a half years ago, namely the Hope for North (Hoop voor Noord) church in Amsterdam, and that that church did not readily issue statements on request when it concerned asylum-seekers; however, it had been happy to do so for the applicant who had been very active in that church. Furthermore, Mr Voordewind had seemingly expressed his disagreement with the finding (in the latest decision rejecting the applicant’s asylum request) that the applicant had not submitted any new facts or circumstances, urging that further research or a counter appraisal of the credibility of the applicant’s conversion should be performed in the given circumstances. The Deputy Minister replied in that letter that he saw no circumstances which gave rise to a need for a reconsideration of the refusal of the applicant’s asylum request, but that the applicant would be invited to lodge a fresh asylum request.

On 2 February 2015 the applicant lodged a fifth asylum request and an interview was held with him that same day. The applicant submitted, inter alia, that he had been a Christian and an active member of a church for seven consecutive years now, that all of his family members in Afghanistan knew about his conversion, and that his Christian belief had intensified even more since he had been attending the Hope for North church. In support of this claim, the applicant submitted an affidavit of the officiating minister and deacon (diaken) of the Hope for North church of 24 July 2014, attesting, inter alia, to the fact that the applicant had been an active member of that church since July 2013, attending church services every week; that they were convinced of the applicant’s sincere Christian belief; that their church was familiar with the fact that asylum-seekers might abuse it in order to obtain a residence permit; and that they were therefore very careful in giving statements.

The applicant further submitted a “Report Concerning the Credibility of Conversion” (Rapport Inzake Geloofwaardigheid Bekering), dated 29 November 2014 and drawn up in Dutch by Professor J.W. van S. of the Free University (Vrije Universiteit) of Amsterdam, a theology professor and a psychologist of religion. This report contains an assessment of the credibility of the applicant’s conversion to Christianity and commences with a general part in which definitions, different stages and types of conversion are described, followed by an elaboration of the analysis and classification of the credibility of conversion, all with references to other scientific reports. The second part of the report comprises an analysis of the applicant’s conversion based on his case file, that is to say all the records of interviews held with the applicant and all the decisions taken by the administrative and judicial authorities in the course of the proceedings concerning the applicant’s third and fourth asylum requests. The analysis entails an assessment of those documents based on eight questions through which the type of conversion is classified and the symptoms of different stages are compared for consistency to the assessed type; the departure from the previous religion and the motivations for conversion are compared to the way in which that process has been expressed and three dimensions (affection, cognisance, behaviour) of conversion are assessed for consistency. The conclusion of this report, in so far as relevant, reads as follows:

“Based on the criteria concerning internal and external consistency, I find [the applicant]’s conversion credible. It appears to concern an active conversion (as opposed to a passive conversion) in which a change of religious beliefs occurs after a change in behaviour instigated by a crisis during which the convert experiences a lack of purpose. The different stages of the so-called ‘RAMBO model’ (pertaining to an active convert) are clearly recognisable. The motivations are consistent with the way they are expressed and the three dimensions of conversion are clearly visible and consistent with the religion he has converted to.”

Lastly, the applicant submitted an affidavit of 26 January 2015 from the preacher of the Rotterdam detention centre for asylum-seekers, attesting, inter alia, that the applicant was a Christian, that he had converted other asylum-seekers and that he attended church every Sunday including going to Bible-study groups.

By decision of 23 February 2015 the Deputy Minister rejected the asylum request, considering that there were no newly emerged facts or circumstances. The Deputy Minister took the view that since the documents submitted by the applicant (the abovementioned report on credibility as well as the affidavits) had been drawn up at the applicant’s request they could not be regarded as legally relevant new facts. With regard to Professor Van S.’s credibility report, the Deputy Minister considered that it could have been drawn up and submitted in previous asylum proceedings, which the applicant had failed to do without giving reasons as to why this had not been possible. Moreover, the fact that the report had been based on documents and that no assessment in person had been carried out discredited, in the Deputy Minister’s view, the value of the report. Lastly, the Deputy Minister observed that the report presupposed the alleged vendetta killings of the applicant’s father and brother as a basis for the crisis experienced by the applicant, but that that account of events had been found to lack credence in the proceedings in the applicant’s first application for asylum.

On 10 March 2015 the Repatriation and Departure Service of the Ministry of Security and Justice informed the applicant’s lawyer that a charter flight to Kabul, Afghanistan, had been arranged for the applicant’s removal, scheduled for 23 March 2015.

The applicant lodged an appeal against the Deputy Minister’s rejection with the Regional Court, accompanied by a request for a provisional measure (voorlopige voorziening) in order to stay his removal pending appeal. When filing his grounds of appeal, the applicant supplemented the above-mentioned documents which he had submitted in support of his fifth asylum request with a report entitled “Assessment of Conversion” (Toetsing Bekering) of 25 February 2015 and drawn up by Dr M.V. of the Gift Foundation (Stichting Gave), an interdenominational organisation supporting churches in their contacts with refugees and asylum seekers. That report concluded that in view of, inter alia, Professor Van S.’s report (see paragraph 21 above) strong reasons for a reconsideration of the applicant’s asylum application existed.

A hearing took place before the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Haarlem, on 16 March 2015, in the presence of the applicant and counsel.

On 17 March 2015 the applicant asked the Court for the second time to issue an interim measure under Rule 39.

On 19 March 2015 the provisional-measures judge of the Regional Court dismissed the applicant’s appeal and rejected the request for a provisional measure. Noting that the impugned decision of the Deputy Minister was substantially similar to the decisions on the applicant’s earlier asylum applications, the provisional-measures judge set out the applicable framework for his review as follows:

“4.1 It follows from the ne bis in idem principle that, if after an earlier negative decision a substantially similar decision is taken, it is at the outset to be assumed that the administrative court is not allowed to review the latter decision as if it were a first rejection. That decision, its reasoning and the manner in which it came about can only be reviewed by the administrative court if the alien adduced newly emerged facts or altered circumstances in the administrative stage, or if it follows from the alien’s submissions that a change in the law, relevant to his situation, has occurred. It is only when exceptional facts and circumstances within the meaning of paragraph 45 of the European Court of Human Rights’ judgment of 19 February 1998 (Bahaddar v. the Netherlands [Reports of Judgments and Decisions 1998I]) pertain, relating to the individual case, that the above does not apply.

4.2 The provisional-measures judge will examine ex officio whether the request is based on newly emerged facts or altered circumstances. These include facts and circumstances which have occurred after the previous decision was taken or which could not have been adduced prior to the taking of that decision, as well as documents supporting already previously adduced facts or circumstances which it was not possible to submit prior to the earlier decision. Such newly emerged facts or altered circumstances will not, however, justify a new judicial examination if it is from the outset excluded that that which has been adduced or submitted is incapable of detracting from the earlier decision.”

The provisional-measures judge proceeded to uphold the Deputy Minister’s point of view that the applicant had failed to establish the existence of newly emerged facts or altered circumstances. He considered, inter alia, that the report of 25 February 2015 from the Gift Foundation was of too general a nature. With regard to the applicant’s alleged intensified beliefs and activities in his church, it was considered that this argument had already been submitted in previous asylum applications and that the applicant had failed to repair the lack of insight given regarding the motivational process leading to his alleged conversion. As regards Professor Van S.’s report, the provisional-measures judge observed that the Deputy Minister had conceded during the hearing before that judge that the applicant could not have submitted said report at an earlier stage. However, the availability of the report did not affect the fact that it was for the applicant himself to relate convincingly about the motives for and the process of his conversion – and the applicant had failed to do so. The provisional-measures judge further held that even though considerable weight fell to be accorded to a report drawn up by Professor Van S. that focused on the individual asylum-seeker, this did not in every situation entail that a decision in which the Deputy Minister reached a different conclusion was by definition untenable. It was considered relevant in the case at hand that the Deputy Minister had challenged the report in a germane and well-reasoned manner, and the provisional-measures judge concurred with the Deputy Minister’s criticism. Thus, it was indicated in the report that the death of the applicant’s father and brother could have caused the crisis or disorientation that constitute one of the stages of a conversion. However, it did not appear that account had been taken in the report of the fact that this part of the applicant’s asylum statement had already been disbelieved in the earlier proceedings. Moreover, no confirmation could be found in the report of the applicant’s claim that Professor Van S. included in her assessment the question to what extent certain statements were brief and vague and what weight fell to be accorded to them. While Professor Van S. mentioned the period between 2003 and 2007 and the applicant’s statements surrounding that period in her report, no attention had been given to the vague and contradictory statements which the Deputy Minister had examined in the earlier proceedings. For this reason the provisional-measures judge concluded that it was from the outset excluded that the report by Professor Van S. could detract from the decisions that had been taken on the applicant’s previous asylum requests.

On 20 March 2015 the Acting President of the Section decided, under Rule 39, to indicate to the Netherlands Government that it was desirable, in the interest of the parties and of the proper conduct of the proceedings before the Court, not to expel the applicant to Afghanistan for the duration of the proceedings before the Court.

On 17 April 2015, the applicant informed the Court that he had lodged a further appeal with the Division against the Regional Court’s decision of 19 March 2015.

On 28 September 2015 the applicant submitted to the Division a reply which his lawyer had received from Professor Van S. to a question from the lawyer relating to the Deputy Minister’s criticism that Professor Van S. had partly based her conclusion of the sincerity of the applicant’s conversion on events which had been disbelieved. Professor Van S. stated that her report also mentioned that the crisis which had immediately preceded the applicant’s conversion had taken place while the applicant had been in immigration detention as set out in the report of the interview held with him in 2008 (see paragraph 4 above). The crisis-stage of the conversion could therefore be considered reliable even without the death of the applicant’s father and brother. This letter of 28 September 2015 was returned to the lawyer; as the Division had concluded its preliminary examination prior to receipt of the letter, it could not be added to the file.

On 30 September 2015 the Division dismissed the applicant’s further appeal on summary reasoning. No further appeal lay against that decision.

On 27 January 2016 the applicant submitted to the Court a report of a meeting that had taken place on 8 December 2015 between himself and two members of the so-called Plaisier Commission. This commission, set up in 2013, consists of a number of theologians from various Protestant churches. It carries out independent assessments of the conversion of asylum-seekers at the request of lawyers. Following their meeting with the applicant, the two members of the Commission concluded that they had no reason to doubt the sincerity of the applicant’s faith.

The applicant further submitted two statements, dated 29 October and 27 November 2015, respectively, from ministers attached to a Christian Reformed Church in Hoogeveen, where the applicant was living at that time. The two authors attested to the applicant’s attendance of church services and his involvement in other church activities as well as to the sincerity of his Christian beliefs.