ECtHR - A.M.A. v. the Netherlands, Application No. 23048/19, 24/10/2023

Facts:

The applicant, a Bahraini national and Shiite Muslim, applied for asylum in the Netherlands on 10 August 2017, claiming fear of persecution by the Bahraini authorities due to his political activities with an opposition group, his religion, and his brother's status as a political activist sought by Bahrain. His first asylum application was rejected on 23 August 2017 on credibility grounds. His appeal was eventually declared inadmissible for procedural reasons. In anticipation of removal, the applicant repeatedly told the Repatriation and Departure Service that he feared immediate arrest upon return to Bahrain, alleging he was on a wanted list for terrorism.

On 18 October 2018, he was informed his expulsion would take place on 20 October 2018. On 19 October 2018, the applicant received from his brother copies of documents from the Bahraini Public Prosecutor's Office showing that a person had named the applicant during questioning. He immediately submitted a subsequent asylum application. On the morning of 20 October 2018, he was interviewed without a lawyer present. The officer informed him orally that his application would be rejected because the documents were not original, were in Arabic, and could not serve as new evidence. A written decision was issued that same day, finding the application inadmissible and stating that the applicant must leave immediately.  The applicant was expelled by plane that afternoon. Upon arrival in Bahrain, he was immediately arrested, detained, and later convicted of terrorism offences and sentenced to life imprisonment. He alleged he was tortured to extract a confession and that detention conditions were very poor.

Decision & reasoning:

The Court first addressed admissibility. The Government argued non-exhaustion of domestic remedies, noting that the applicant had not lodged an objection or sought interim relief. The Court found that no effective remedy was available to him. Even assuming he had a lawyer, the authorities had not enabled him to contact her after the interview, and the decision was sent to a non-representing lawyer only after he had already been removed. The complaint was therefore admissible.

On the merits, the Court reiterated that risk assessments under Article 3 must be rigorous and take into account all relevant facts, and that the absolute character of Article 3 cannot be compromised even for last-minute applications. The Court found that the Deputy Minister had not properly assessed the risk. Information from the first asylum proceedings, including country-of-origin information and transcripts showing the applicant's repeated fear of arrest, was available but did not appear to have been included in the decision. The Court saw no reason to doubt the applicant's good faith in submitting his subsequent application once he had new evidence, rejecting the finding that it was submitted solely to delay removal.

Regarding the new documents, the Court held that the Deputy Minister had taken a too narrow approach by bluntly concluding they had no probative value because they were untranslated copies, without any prior assessment of their potential relevance in light of the applicant's individual situation and the general situation in Bahrain. The Court concluded that the respondent State had failed to discharge its procedural obligation under Article 3.

Outcome:

The Court

1.      Declares, unanimously, the complaint under Article 3 of the Convention admissible;

2.      Holds, unanimously, that there has been a violation of Article 3 of the Convention;

3.      Holds, by six votes to one, that there is no need to examine the admissibility or the merits of the complaint under Article 13 of the Convention;

4.      Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 50,000 (fifty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Observations/comments:

The case demonstrates that the effectiveness of remedies under Article 13 is critically compromised when an applicant in detention faces imminent removal within hours, as the practical ability to access legal counsel and lodge an appeal may be illusory despite theoretical availability.

This summary was written by Luna Declerck during her participation in the Migration Law Clinic of Gent University.

Other sources:

Rule 41 of the Rules of Court of the European Court of Human Rights (Order of dealing with cases).

Rule 77 of the Rules of Court of the European Court of Human Rights (Signature, delivery and notification of judgments).