FOURTH SECTION
 
 
 
 
 
 
 
CASE OF AL HUSIN v. BOSNIA AND HERZEGOVINA (No. 2)
 
(Application no. 10112/16)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
25 June 2019
 
 
FINAL
 
25/09/2019
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Al Husin v. Bosnia and Herzegovina (no. 2),
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Faris Vehabović,
 Paul Lemmens,
 Iulia Antoanella Motoc,
 Stéphanie Mourou-Vikström,
 Georges Ravarani,
 Jolien Schukking, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 28 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 10112/16) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Syrian national, Mr Imad Al Husin (“the applicant”), on 17 February 2016. 2. The applicant was represented by Vaša Prava, a local non-governmental organisation. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić. 3. The applicant alleged, in particular, that he had been unlawfully detained in the Immigration Centre, in breach of Articles 3 and 5 § 1 of the Convention, that he had not had adequate remedies at his disposal, in breach of Article 5 § 4 of the Convention, and that he did not have an enforceable right to compensation as required by Article 5 § 5 of the Convention. 4. On 10 July 2017 the Government were given notice of the application. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in Syria in 1963. He currently lives in Ilidža, Sarajevo Canton. A. Relevant background
6. In 1983 the applicant went to the then Socialist Federal Republic of Yugoslavia to pursue his studies. He first studied at Belgrade University, in Serbia, and then at Rijeka University, in Croatia. 7. It would appear that the last time the applicant was in Syria was in January 1993. He stayed for one month and obtained a new Syrian passport. 8. In 1993, having returned from Syria, the applicant met a refugee from Bosnia and Herzegovina (“BH”) in Croatia. They were married in a Muslim wedding ceremony in 1993 and then in a civil ceremony in 1995. They have three children together, born in 1994, 1997 and 1999. 9. During the 1992-95 war the applicant was a member of the El Mujahedin unit which had been organised as a unit within the local forces of the Army of the Republic of Bosnia and Herzegovina (“the ARBH”) in August 1993 (for more information about foreign mujahedin in BH see Al Husin v. Bosnia and Herzegovina, no. 3727/08, §§ 8-14, 7 February 2012). On an unknown date the applicant obtained BH citizenship. 10. Article III of Annex 1A to the Dayton Peace Agreement called for the withdrawal of all foreign forces (including individual advisors, freedom fighters, trainers, volunteers and personnel) from neighbouring and other States, irrespective of whether they were legally and militarily subordinated to any of the local forces. Accordingly, on 14 December 1995 the ARBH disbanded the El Mujahedin unit and ordered its foreign members to leave the country by 10 January 1996. Whereas most of the unit’s foreign members left BH, some of them (such as the present applicant) applied for BH citizenship and continued to live in BH. After the attacks in the United States of 11 September 2001, the official attitude towards foreign mujahedin changed. Many lost their BH citizenship or were deported from BH after being declared a threat to national security. 11. In the immediate aftermath of the 1992-95 war, the applicant acted as the leader of a group of foreign mujahedin and their local supporters based in Donja Bočinja, a village in central BH. The group advocated the Saudi-inspired Wahhabi/Salafi version of Islam. In his role as the group’s leader, the applicant interrogated two local Serbs for a couple of hours in 1998. This led to his conviction for unlawful deprivation of liberty in May 2000 and a suspended prison sentence. 12. On 5 April 2007 the applicant’s BH citizenship was revoked, as a result of which he became unlawfully resident in BH. The authorities held that he had acquired BH citizenship by means of fraudulent conduct, false information and the concealment of relevant facts. 13. On 6 October 2008 the applicant was placed in an immigration centre on security grounds, pursuant to section 99(2)(b) of the 2008 Aliens Act, because it had been established that he posed a threat to national security. 14. Following the dismissal of an asylum claim lodged by the applicant, the Aliens Service issued a deportation order in respect of him on 1 February 2011. It was decided to expel the applicant and to prohibit his re-entry to BH for five years. On 2 March 2011 and 29 November 2011, following appeals by the applicant, the Ministry of Security and the State Court of Bosnia and Herzegovina (“the State Court”), respectively, upheld that decision. Thereafter the applicant was detained with a view to his deportation, pursuant to section 99(1)(a) of the 2008 Aliens Act. 15. On 29 December 2011 the applicant lodged a constitutional appeal with the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) against the decisions of the Aliens Service, the Ministry of Security and the State Court of 1 February 2011, 2 March 2011 and 29 November 2011, respectively (see paragraph 14 above). The applicant invoked Articles 2, 3, 5 and 8 of the Convention and Article 2 of Protocol No. 4 to the Convention. The Constitutional Court gave a decision on 30 October 2012 (see paragraph 20 below). B. The applicant’s first case before the Court
16. On 22 January 2008 the applicant lodged his first application with the Court (see Al Husin, cited above), complaining, in particular, that his deportation to Syria would expose him to the risk of treatment contrary to Article 3 of the Convention and that his detention amounted to a breach of Article 5 § 1 of the Convention. On 15 March 2011, after a deportation order against the applicant had been issued and become final (see paragraph 14 above), the Court decided, in the interests of the parties and the proper conduct of the proceedings, to indicate to the Government that the applicant should not be expelled to Syria until further notice (Rule 39 of the Rules of Court). 17. In a judgment of 7 February 2012 the Court held that there would be a violation of Article 3 in the event of the applicant’s deportation to Syria (see Al Husin, cited above, § 54). The Court considered that the indication made to the Government under Rule 39 should remain in force until the above-mentioned judgment became final or until the Court took a further decision in that connection (ibid., § 92). The Court furthermore found a violation of Article 5 § 1 with regard to the period of the applicant’s detention from 6 October 2008 until 31 January 2011 because during that time he had been detained without a deportation order having been issued against him (ibid., §§ 62-66; see also paragraph 14 above). As regards his detention from 1 February 2011 onwards, the Court found that there had been no violation of Article 5 § 1 of the Convention (ibid., §§ 67-69). That judgment became final on 9 July 2012. C. The present case
1. Deportation proceedings
18. On 6 March 2012 the Appeals Chamber of the State Court reversed the State Court’s judgment of 29 November 2011, quashed the decisions of 1 February 2011 and 2 March 2011 (see paragraph 14 above) and remitted the case to the Aliens Service for reconsideration. The Appeals Chamber held that the administrative authorities and the State Court had failed to take into account the situation in the country of the applicant’s origin and the potential violations of his rights under Article 3 and 5 of the Convention in the event of his deportation to Syria. 19. On 15 March 2012 the Aliens Service issued a new deportation order in respect of the applicant, which prohibited his re-entry into BH for five years. The order furthermore stated that once the applicant had become subject to expulsion, in the event that he failed to voluntarily leave the country, an additional “removal directions” (zaključak o dozvoli izvršenja) order would be issued specifying a destination country and the manner, the time, and the place of the enforcement thereof. On 3 April 2012 and 4 July 2012, following appeals by the applicant, the Ministry of Security and the State Court, respectively, upheld that decision. The State Court rejected, in particular, the applicant’s complaint concerning the lack of specification of a destination country in the deportation order. It emphasised that under the 2008 Aliens Act a destination country was to be specified only in the relevant removal directions (see paragraph 77 below). 20. On 30 October 2012 the Constitutional Court dismissed the applicant’s constitutional appeal (see paragraph 15 above). It held that the circumstances of the applicant’s case had changed following the Court’s judgment of 7 February 2012 (see paragraph 17 above) and that consequently, the further examination of his complaints was no longer necessary. 2. The applicant’s detention in the Immigration Centre
(a)  Decisions of the administrative authorities and the State Court
21. On 16 February 2012 the Aliens Service extended the applicant’s detention, with a view to his deportation, for a period of thirty days on the same grounds as before (see paragraph 13 above). Thereafter, throughout 2012 and 2013, the applicant’s detention was regularly examined and extended every month (and, following changes to the 2008 Aliens Act, every two months; see paragraph 76 below). The Aliens Service held that the reasons for the applicant’s detention still pertained – specifically in view of evidence provided by the National Security Agency that indicated that the applicant still posed a threat to national security. He was an unlawful resident in BH who had refused to leave the country voluntarily. Furthermore, the Aliens Service had regard to the Court’s finding that the applicant’s deportation to Syria would have led to a violation of Article 3 of the Convention and to the fact that the conditions for his deportation to a safe third country had not been met. Each time the applicant’s detention was extended, the Aliens Service examined whether it was justified to impose less strict preventive measures. 22. The applicant repeatedly challenged his detention. His appeals were rejected by the Ministry of Security and the State Court, respectively, which had essentially endorsed the reasons advanced by the Aliens Service. 23. On 26 February 2014 the Aliens Service further extended the applicant’s detention. That decision was upheld on 3 March 2014 and 10 March 2014 by the Ministry of Security and the State Court, respectively. 24. On 14 May 2014 the Appeals Chamber of the State Court quashed the judgment of 10 March 2014 (see paragraph 23 above) and remitted the case for re-examination. The Appeals Chamber, referring to the Court’s case-law, held that the applicant should have been informed of the reasons for his continued detention and of the grounds on which he was deemed to be a security risk. It emphasised that it was not necessary to present all of the relevant information to the applicant. However, the information provided to him by the National Security Agency had not satisfied the minimum requirements under Article 5 of the Convention to justify the extension of the applicant’s detention. The Appeals Chamber furthermore emphasised that the courts were entitled to assess the existence of any reasonable doubt – that is to say the reasons given by the National Security Agency. Without such an assessment the examination by a court of the applicant’s case would constitute a pure formality, which would be contrary to Article 5 of the Convention. Furthermore, the State Court’s examination of the possibility to apply other less strict preventive measure had involved the assessment of general and abstract arguments, without any further consideration. The Appeals Chamber invited the State Court to examine that possibility in the light of the circumstances of the case – in particular, the length of the applicant’s detention, the applicant’s personal circumstances and the evidence related to national security. 25. On 5 June 2014 the State Court again upheld the Ministry of Security’s decision of 3 March 2014 (see paragraph 23 above). The court stated that on 21 May 2014 the National Security Agency had submitted classified evidence for the court’s review and “open” evidence for the applicant’s review. On 23 May 2014 the court heard the applicant and disclosed to him the open evidence, the relevant part of which reads as follows:
“Imad Al Husin arrived [in Bosnia and Herzegovina] immediately after the outbreak of war ... [At the time he] was a member of the El Mujahedin unit, in which he was one of the main persons in charge of logistical support. The applicant acted as one of the leaders in the formation of a mujahedin community in Donja Bočinja, in the municipality of Maglaj; [the mujahedin community] was a closed community and the first of that sort in Bosnia and Herzegovina ... the applicant was in charge of reconstruction and building and of maintaining contacts with the authorities. Security information shows that Imad Al Husin owns various real estate in Bosnia and Herzegovina worth millions, as well as [holding] bank accounts abroad ... the members of the Bočinja community claimed that they did not ‘respect the laws of Bosnia and Herzegovina’ and did not ‘recognise the Bosnian Government’... [The applicant], as one of the leaders of the mujahedin community, knew that some members of his community had left to fight with other mujahedin, mostly in Afghanistan ... He had contacts with mujahedin who had fought or were still fighting in Afghanistan, Chechnya, Iraq, Libya and Syria. Most of those persons were declared to be a threat to national security ... Imad Al Husin was involved in the humanitarian agency Islamic Relief, [which was] led at the time by Enam Arnaout, who was later convicted of terrorism in the United States ... In 1995 Imad Al Husin maintained contacts with a certain Ahmed Zuhair ... from Saudi Arabia, who has been involved in several terrorist attacks in Bosnia and Herzegovina ... Together with several other foreign citizens, Imad Al Husin has established [several companies, including] PP Al Karamein [and] Bedr Bosna, which have employed mostly former foreign fighters who participated in the war in Bosnia and Herzegovina. In 2002 and 2005 the Federal Financial Police discovered a number of irregularities concerning the Bedr Bosna company, mostly concerning tax evasion ... From mid-2007 he maintained closer contacts with members of criminal circles in Sarajevo ... On 25 June 2008 Imad Al Husin attempted to buy ammunition, most probably for a gun, in an ammunition shop located in Hifzi Bjelavca Street ... in Sarajevo ... but was refused because he did not possess a gun licence ... In 2008 he was visited by a certain Hussam Mousaa El Abed, who at the time lived in Denmark; on that occasion he gave [to the applicant] money collected abroad ... Al Abed was suspected of providing financial support to terrorist organisations ... On 3 April 2007 Imad Al Husin obtained a passport from the Syrian Embassy in Belgrade ... His family in Syria is very influential and its members serve at the highest level of Bashar Al Assad’s government. His brother used to be a colonel in the Syrian Army. Imad Al Hussin is or has been in contact with many persons suspected of international terrorism, including [persons] who lived in the mujahedin community in Bočinja, as well as [persons] living abroad who visited the community.”
26. The applicant dismissed all the information as general and unsubstantiated. He in particular denied the assertion that he had advocated the Saudi-inspired Wahhabi/Salafi version of Islam. He argued that he should not have been perceived as a terrorist just because he spoke Arabic and moved in the BH Arabic community. The applicant submitted that on one occasion he and some of his friends had helped the National Security Agency to locate and arrest persons connected with the killing of a police officer. He furthermore pointed out that, following a request by Human Rights Watch and Amnesty International, the United States State Department’s 2007 Country Report on Terrorism – specifically, the entry for Bosnia and Herzegovina, in which the applicant had been wrongly identified as Abu Hamza al-Masri, an Egyptian national and a convicted terrorist – had been amended in 2008. The applicant also submitted that he had always responded to summonses issued by the authorities. He furthermore provided a certificate issued by the BH Islamic Community confirming that he had been one of its members and statements given by two imams from Sarajevo attesting that the applicant had never given any lectures in their respective mosques. Moreover, the applicant also denied the veracity of the allegation regarding his bank accounts and real estate. He asked to be presented with evidence in support of those claims. 27. The State Court held that the applicant had not succeeded in calling into question or refuting the open evidence submitted by the National Security Agency. Rather, he had used abstract and general statements in an effort to downplay the importance of the information provided therein. Furthermore, the applicant had submitted certain documents (written statements, letters and so on) for the first time at the hearing of 23 May 2014, even though it was apparent that he had had them before. Having assessed the reasons given by the Aliens Service and the Ministry of Security, the content of the classified and open evidence, and the applicant’s arguments, the court concluded that there still existed reasonable doubt as to whether or not the applicant posed a threat to national security and that the imposition of a less strict preventive measure was not justified, given the particular circumstances of the case. The State Court concluded that there had been no violation of Article 5 § 1 of the Convention. The court furthermore held that, contrary to the applicant’s arguments that he feared criminal prosecution in Syria, it was evident from the case file that his family was very influential and close to Bashar Al Assad’s regime. Many members of the applicant’s family occupied high positions in government. His brother was a retired colonel in the Syrian Security Forces. Moreover, on 3 April 2007 the applicant had obtained a passport from the Syrian Embassy in Belgrade. The court concluded that in the prevailing circumstances there were no longer any obstacles to the applicant’s deportation to Syria. Lastly, the court assessed the Ministry of Security’s efforts in finding a safe third country and concluded that it had acted diligently and in close cooperation with the Ministry of Foreign Affairs. However, thirty-two countries, including all the Arab states, had refused to accept the applicant, giving as a reason his personality and the circumstances surrounding him. 28. On 16 July 2014 the Appeals Chamber of the State Court upheld the judgment of 5 June 2014. 29. In the meantime, on 27 May 2014 the Aliens Service further extended the applicant’s detention. On 2 June 2014, following an appeal by the applicant, the Ministry of Security upheld that decision. 30. On 11 June 2014 the State Court, following an appeal by the applicant, quashed the decisions of 27 May 2014 and 2 June 2014 (see paragraph 29 above) and remitted the case to the Aliens Service for reconsideration. The court noted in particular that the deportation order had been issued on 1 February 2011 (see paragraph 14 above) and that the applicant had been detained with a view to deportation for more than three years, and on national-security grounds for more than five years. During that time no criminal proceedings had been opened against him. Furthermore, the open evidence presented to the applicant was widely known as it had already been published in the media. The deportation order was unlikely to be enforced: the relevant authorities had contacted more than thirty countries, but none of them had agreed to accept the applicant. Moreover, it was apparent from the case file that the National Security Agency did not have any new evidence that would justify the applicant’s continued detention. The evidence on which his continued detention was based was the same as that which had been cited as justification for his initial detention. The court furthermore added that a concern that the applicant could pose a threat to national security, without any new evidence, was not enough to draw a reasonable conclusion regarding the actual threat that he represented. A detention based solely on security grounds was contrary to Article 5 § 1 of the Convention. The administrative authorities had not justified their conclusion concerning the persistence of a reasonable suspicion that the applicant would pose a risk to national security if released. Furthermore, their examination of the possibility to apply less strict preventive measures had involved general and abstract arguments, without any further explanation being given. The court ordered the Aliens Service to examine such a possibility in the light of the arguments presented in its judgment. 31. Following the remittal of the case, on 20 June 2014 the Aliens Service further extended the applicant’s detention with a view to his deportation and on national-security grounds. On 13 June 2014 the applicant was heard by the Aliens Service concerning the possibility of less strict preventive measures being applied. On that occasion he submitted that he had accommodation (his registered place of residence) outside the Immigration Centre but that he did not have any financial means. Furthermore, the applicant submitted that a preventive measure that included a prohibition on his leaving his registered place of residence, which was in Ilidža, would not have been suitable for him because he needed the services of a medical-care service located in Sarajevo. The Aliens Service held that the circumstances justifying the applicant’s detention remained the same. It furthermore emphasised that all necessary steps were being taken with a view to finding a safe third country to which the applicant could be deported. 32. On 23 June 2014 and 27 June 2014 the Ministry of Security and the State Court, respectively, upheld the Aliens Service’s decision of 20 June 2014. 33. Thereafter, until the end of 2014 and throughout 2015 the applicant’s detention was continually extended. All of his appeals were dismissed by the Ministry of Security, the State Court and the Appeals Chamber of the State Court, respectively. 34. During this period several hearings were held before the State Court. 35. At a hearing of 9 September 2014 the applicant submitted that he had contacted the authorities of the Republic of Turkey concerning the possibility of his moving there, but that his request had been refused on the basis of information provided by the National Security Agency. Moreover, the applicant objected that he had not been given the possibility to comment on the open evidence. Since the National Security Agency did not have any new information concerning the applicant, the State Court decided to join to the applicant’s submissions the minutes of the hearing of 23 May 2014 at which he had had the possibility to comment on open evidence (see paragraph 25 above). 36. At a hearing of 3 March 2015 the State Court presented to the applicant open evidence submitted by the National Security Agency. The same information had already been submitted to the applicant’s representative on 6 February 2015 by the National Security Agency. The information essentially described the applicant’s role as that of the self-proclaimed leader of the mujahidin community in Donja Bočinja and referred to his conviction for unlawful deprivation of liberty in 2000 (see paragraph 11 above). It furthermore stated that until being placed in detention, the applicant had consistently advocated the Saudi-inspired Wahhabi/Salafi version of Islam and had publicly expressed his support for Osama bin Laden. The rest of the information was identical to that disclosed to the applicant at the hearing of 23 May 2014 (see paragraph 25 above). The applicant rejected that information as too general and submitted that no criminal proceedings had ever been initiated against him. 37. In its decisions following the hearing the State Court held in particular that the relevant authorities were diligently working on finding a safe third country, in compliance with Article 5 § 1 of the Convention, and that the applicant still posed a threat to national security. The authorities had contacted more than fifty countries, of which thirty-nine had given a negative response to a request to accept the applicant, while the others had not responded at all. The State Court furthermore endorsed the administrative bodies’ conclusion concerning the possibility of applying a less strict preventive measure. 38. At a hearing of 3 June 2015 the applicant was informed that there had been no new information or evidence submitted against him by the National Security Agency. Accordingly, the State Court decided to join to the applicant’s submissions the minutes from the hearing of 3 March 2015 at which he had had the possibility to comment on the open evidence (see paragraph 36 above). 39. At a hearing of 28 August 2015 the State Court ruled that a report submitted by the National Security Agency on 17 August 2015 did not contain any new information concerning the applicant. The State Court thus joined again to the applicant’s submissions the minutes of the hearing of 3 March 2015 at which he had had the possibility to comment on the open evidence (see paragraph 36 above). 40. At a hearing of 30 November 2015 the State Court held that the National Security Agency’s report, submitted on 16 November 2015, did not contain any new information concerning the applicant. Accordingly, the court again referred to the applicant’s submissions during the hearing of 3 March 2015 at which the open evidence had been presented to him (see paragraph 36 above). (b)  The Constitutional Court’s decisions
41. The applicant lodged several constitutional appeals concerning the extension of his detention, relying on Articles 3 and 5 §§ 1 and 4, and on Articles 8 and 13 of the Convention. He alleged in particular that he had not been granted access to closed evidence, that he had been placed in preventive detention and that it was unrealistic to expect any other country to accept a person who had been declared a threat to national security. 42. In a decision of 28 February 2013 (decision no. AP 222/13) the Constitutional Court examined the lawfulness of the applicant’s detention from 12 November 2012 until 10 December 2012 and dismissed his appeal as manifestly ill founded, essentially endorsing the reasoning of the State Court and the relevant administrative bodies. 43. On 17 June 2015 (decision no. AP 2742/13) the Constitutional Court examined an appeal lodged by the applicant against sixteen judgments delivered by the State Court between 14 March 2013 and 25 March 2015 concerning the lawfulness of his detention in the period between 21 March 2013 and 7 June 2015. The Constitutional Court found a violation of Article 5 § 1 (f) of the Convention with regard to the period of the applicant’s detention from 21 March 2013 until 14 March 2014 (the lawfulness of which had been addressed by the State Court in judgments delivered between 14 March 2013 and 6 January 2014). It dismissed the rest of the applicant’s complaints as manifestly ill-founded. That decision was delivered to the applicant on 13 August 2015. The relevant part of the Constitutional Court’s decision reads as follows:
“46. As regards the judgments delivered between 14 March 2013 and 6 January 2014 the Constitutional Court notes ... that is evident that the appellant’s detention was extended in accordance with the law because it had been established that he posed a threat to national security ... The appellant had the possibility to challenge those decisions. However, the fact that the appellant posed a threat to national security was established on the basis of [information held by] the National Security Agency. The appellant alleged that he had not been informed of the charges against him in this respect, but the State Court considered that those arguments were unsubstantiated, because the relevant provisions prohibited the examination of secret evidence if to do so would be against the public interest. 47. The Constitutional Court reiterates that in case no. AP 4064/13 ... it found a violation of Article 5 § 1 (f) of the Convention in respect of a situation in which ... the appellant had been detained on the basis of [information held by] the National Security Agency whose content had never been disclosed to him, not even in substance, and the State Court had failed to adequately examine that information and assess its reliability. 48. The Constitutional Court does not see any reason to depart from [that] practice ... in the present case as regards the judgments delivered in the period from 14 March 2013 until 6 January 2014, since the content of the [National Security Agency’s] information, on the basis of which he was declared a threat to national security, was not disclosed to the appellant, and the State Court failed to adequately examine that information and assess its reliability.

Outcome for Article 5: violation