EGMR

[...]

145. The applicant fears detention and ill-treatment in Libya on account of his political opposition activities, and the nature of the charges for which he had been tried in the Netherlands and which trial had been widely reported in the media.

146. The Court observes from the materials in its possession and the materials submitted by the parties that the overall human-rights situation in Libya continues to give rise to serious concerns. Where it concerns the position of persons detained in Libya, materials from both governmental and non-governmental sources indicate the existence of a real risk for detainees in Libya to be subjected to torture and/or ill-treatment (see above §§ 90, 92, 104, 105 and 109) which – according to the most recent report of the USA Department of State – are said to occur routinely (see above § 109).

147. As to the risk that the applicant will be detained if expelled to Libya, the Court notes that, in the applicant's own submissions, the opposition group for which he had been active had started having problems with the Libyan regime as from late 1992 or early 1993 whereas he had not encountered any problems from the side of the Libyan authorities when he left Libya at the end of 1994 via an official border crossing-point, holding his own authentic passport. As apparently persons leaving or entering Libya are subjected to strict controls by border control officials, the Court considers that in these circumstances it has not been established that the applicant had attracted the negative attention of the Libyan authorities on account of his alleged opposition activities prior to his departure from Libya.

148. Where it concerns the risk of the applicant being detained in Libya for having stood trial in the Netherlands on suspicion of involvement in an Islamic extremist network active in the Netherlands, the Court notes that the applicant was acquitted in these proceedings. However, these criminal proceedings attracted considerable media attention and the applicant's name and nationality were disclosed in several printed media reports. The Court also notes that on 9 November 2005, shortly after the prosecution had withdrawn its appeal against the applicant's acquittal in the criminal proceedings, the Libyan mission in the Netherlands was informed by the Aliens Police Department that the applicant had been placed in aliens' detention for removal purposes.

149. The Court further notes that, according to reports of the Netherlands Ministry of Foreign Affairs and the United States Department of State, the Libyan authorities oppose militant forms of Islam and that, according to information gathered by the Dutch Refugee Council, the Libyan authorities often have a good insight in the activities and contacts of Libyans abroad. Against this background and the strict controls of persons seeking to enter Libya, the Court considers it sufficiently plausible for the purposes of Article 3 of the Convention that the applicant would be identified and detained for questioning after his arrival in Libya entailing a real risk of being subjected to treatment in violation of Article 3 at the hands of the Libyan authorities.

150. In view of the above, the Court considers that substantial grounds have been shown for believing that the applicant would face a real risk of treatment proscribed by Article 3 of the Convention if expelled to Libya. Given this finding, the Court does not find it necessary to examine the remaining issues raised by the applicant under this provision.

151. The Court finds therefore that, in the circumstances of the present case, the applicant's expulsion to Libya would breach Article 3 of the Convention. 2. Article 13 of the Convention

152. The Court reiterates at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens, and that the right to political asylum is not explicitly protected by either the Convention or its Protocols.

153. Accordingly, the decision to deny the applicant the status of refugee as well as the decision to impose an exclusion order on him did not, as such, concern a right or freedom guaranteed under the Convention.

54. The question remains, however, whether the applicant did have an effective remedy where it concerned his claim under Article 3 of the Convention in relation to his expulsion to Libya.

155. The Court reiterates that Article 13 guarantees the availability at the national level of a remedy to enforce – and hence to allege non-compliance with – the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order and bearing in mind that Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 444, ECHR 2005-III. For Article 13 to be applicable, the complaint under a substantive provision of the Convention must be arguable. In view of the above finding under Article 3, the Court considers that the applicant's claim under Article 3 was "arguable" and, thus, Article 13 was applicable in the instant case.

156. The Court further reiterates that the remedy required by Article 13 must be effective both in law and in practice, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Shamayev and Others, cited above, § 447). The Court is not called upon to review in abstracto the compatibility of the relevant law and practice with the Convention, but to determine whether there was a remedy compatible with Article 13 of the Convention available to grant the applicant appropriate relief as regards his substantive complaint (see, among other authorities, G.H.H. and Others v. Turkey, no. 43258/98, § 34, ECHR 2000-VIII). The "effectiveness" of a "remedy" within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (?onka v. Belgium, no. 51564/99, § 75, ECHR 2002-I; and Onoufriou v. Cyprus, no. 24407/04, §§ 119-121, 7 January 2010).

157. The Court further points out that the scope of the State's obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment materialised and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant's expulsion to the country of destination, and (ii) the provision of an effective possibility of suspending the enforcement of measures whose effects are potentially irreversible (see Shamayev and Others, cited above, § 460; Olaechea Cahuas v. Spain, no. 24668/03, § 35, ECHR 2006-X; and Salah Sheekh v. the Netherlands, no. 1948/04, § 154, ECHR 2007-I).

158. Judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints in the context of expulsion, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 99, ECHR 2002-II).

159. In the present case the Court notes that the applicant's complaint under Article 3 was examined both in the proceedings on his asylum request which mainly concerned the question whether his fear of persecution or treatment in violation of Article 3 of the Convention in Libya was justified, as well as in the subsequent yet partly overlapping proceedings on the applicant's challenge of the exclusion order imposed, which mainly concerned the tolerability of the applicant's presence in the Netherlands. In both sets of proceedings, the Minister's respective decisions to reject the applicant's asylum request and to impose an exclusion order were reviewed by a court in proceedings on appeal and requests for a provisional measure brought by the applicant and, as regards his claim under Article 3, the Court has found no indication that the applicant was hindered in any way from challenging the Minister's decisions and to submit whatever he found relevant for the outcome.

160. Concerning the underlying materials of the AIVD report of 9 February 2005, the Court notes that with the parties' consent these materials were disclosed to the provisional measures judge of the Regional Court of The Hague which in the Court's view has not compromised the independence of the domestic courts involved in the proceedings concerned and neither can it be said that these courts have given less rigorous scrutiny to the applicant's Article 3 claim (see, mutatis mutandis, Lupsa v. Romania, no. 10337/04, § 41, ECHR 2006-VII). Furthermore, the Court notes that this report and the underlying materials did not, as such, concern the applicant's fear of being subjected to ill-treatment in Libya but whether he was posing a threat to the Netherlands national security.

161. The Court is therefore of the opinion that in respect of his Article 3 grievance the applicant had available to him a remedy satisfying the requirements of Article 13 of the Convention. There has accordingly been no violation of this provision. [...]