THIRD SECTION
CASE OF A.M.A. v. THE NETHERLANDS
(Application no. 23048/19)
 
 
JUDGMENT
 
Art 3 (procedural) • Expulsion • Respondent State’s failure to discharge its procedural obligation to properly assess in the context of “last minute” asylum proceedings the alleged risk of treatment contrary to Art 3 before removing him to his country-of-origin (Bahrain)
 
 
STRASBOURG
24 October 2023
 
FINAL
 
24/01/2024
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of A.M.A. v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Yonko Grozev,
 Georgios A. Serghides,
 Peeter Roosma,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 23048/19) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bahraini national, Mr A.M.A. (“the applicant”), on 19 April 2019;
the decision to give notice to the Government of the Kingdom of the Netherlands (“the Government”) of the complaints concerning Articles 3 and 13 of the Convention and to declare inadmissible the remainder of the application;
the decision not to have the applicant’s name disclosed;
the parties’ observations;
the decision of 18 August 2023 to give priority treatment to the application in accordance with Rule 41 of the Rules of Court;
Having deliberated in private on 3 October 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the authorities’ final risk assessment prior to the applicant’s expulsion to his country-of-origin, Bahrain. This assessment was made in the context of “last-minute” proceedings, which deal with subsequent asylum applications that are submitted shortly before removal. The applicant complained that the risk of being subjected to treatment contrary to Article 3 of the Convention if expelled, which risk had indeed materialised, had not been sufficiently assessed by the Dutch authorities, and that he had had no effective remedies available to him to challenge that assessment. THE FACTS
2. The applicant was born in 1991 and is currently detained in Bahrain. He was represented by Mr P.J. Schüller, a lawyer practising in Amsterdam. 3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. THE Applicant’s FIRST ASYLUM PROCEEDINGS
5. The applicant applied for asylum in the Netherlands on 10 August 2017. 6. On 16 August 2017 the applicant had an initial interview (eerste gehoor) with officers of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “IND”) about his identity, nationality and travel itinerary. He stated, among other things, that he was a Shiite Muslim from Bahrain who had travelled legally to Iran, where he had eventually bought a plane ticket for Ecuador with a layover in Amsterdam. During the layover he applied for asylum in the Netherlands. 7. On 18 August 2017 the applicant had a further interview (nader gehoor) with officers of the IND about his reasons for seeking asylum. A report was drawn up of this interview, which was conducted in Arabic with the assistance of an interpreter. The applicant was given the opportunity to make written substantive changes and/or corrections to the report, which his lawyer did on his behalf on 19 August 2017. On that occasion he also submitted a letter from the Dutch Refugee Council (Vluchtelingenwerk Nederland) containing general information on the human rights situation in Bahrain. The applicant stated that he feared persecution and ill‑treatment by the Bahraini authorities on account of his political activities, his religion and the fact that his brother was a political activist who had fled to Germany and was sought by the Bahraini authorities. 8. His asylum account may be summarised as follows. The applicant had been a member of the opposition group “Barbar Revolutionary Youth” since 2012 and had gathered news for it and written critical articles about the Bahraini regime which were then published, either by him or by someone else, on the group’s social media accounts. His brother who was an active member of this group, had left Bahrain for Iran in 2013. Later, his brother had been granted refugee status in Germany. On 9 February 2017 X, one of the members of the group, had been arrested, after which the homes of several other members had been searched. Fearing that he would be arrested next because X, after having been tortured, would divulge his name to the authorities, the applicant had fled the country to Iran on 10 February 2017. The applicant received information that on 11 or 12 February 2017 his home had been searched, that later that month more members of the group had been arrested and that several people, including X, had indeed divulged his name to the authorities. Around the same time the Bahraini government had asked the German authorities to extradite the applicant’s brother from Germany to Bahrain because he was suspected of terrorist activities. Furthermore, the applicant had discovered that there was a list with the names of forty-five alleged terrorists on it, including his brother, who was supposed to be the leader of the terrorist cell, and he feared that he was also one of the forty-five. 9. On 20 August 2017 the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) issued a written notice of his intention (voornemen) to reject the applicant’s asylum application. Noting that relevant parts of the applicant’s statements were incoherent and implausible and that he had presented no evidence of any Internet article written by him or post by him on social media, the Deputy Minister did not deem the applicant’s claimed activities for the Barbar Revolutionary Youth credible. He therefore also found it implausible that the applicant would fear prosecution by the authorities for these activities. The Deputy Minister further declared the applicant’s statements inconsistent as to why X had been arrested and why X would divulge his name and how he had learnt about this. The Deputy Minister also considered it striking that the applicant had stated that one or two days after his departure the authorities started looking for him and had searched his home while, in possession of a valid national passport duly obtained and issued in his name, he had been able to leave the country legally and passed border control without encountering any problems. Furthermore, noting that the applicant based the connection between the suspicion against his brother and his own insecurity in Bahrain solely on the unsubstantiated assumption of being one of the persons named on the terrorist list, the Deputy Minister held that it had not been made plausible by the applicant that he had attracted negative attention of the Bahraini authorities because of the activities of his brother. Lastly, he noted that the applicant had not claimed to have ever personally encountered any problems due to his religion, to belonging to a particular social group or by participation in demonstrations. 10. On 21 August 2017 the applicant submitted written comments (zienswijze) regarding the Deputy Minister’s intended decision. On 23 August 2017 the Deputy Minister rejected the applicant’s asylum application, confirming the reasoning set out in his notice of intention of 20 August 2017 (see paragraph 9 above) and rebutting the applicant’s written comments. 11. The applicant applied for judicial review. He submitted, inter alia, a statement from a leading member of the Barbar Revolutionary Youth group in Germany, as well as information from Human Rights Watch dated 6 March 2017 which showed that family members of political activists were being targeted in Bahrain as retribution for the activities carried out by the activists. The applicant further submitted country-of-origin information regarding ill-treatment of detainees by the Bahraini authorities. By a judgment of 20 September 2017, the Regional Court (rechtbank) of the Hague, sitting in Haarlem, declared his application inadmissible. It held that the applicant had not demonstrated that he had lodged the grounds for judicial review electronically in time. Referring to the Court’s judgment in Bahaddar v. the Netherlands (19 February 1998, Reports of Judgments and Decisions 1998-I), it further held that there were no special circumstances that excused the applicant from the obligation to comply with the set time‑limit and that the evidence adduced was not sufficient to substantiate his fear of being subjected to treatment contrary to Article 3 of the Convention. 12. The applicant further appealed to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State). Pending the examination of his appeal, he changed lawyers and from that moment on he was no longer represented by Mr. B. but by Ms. S. 13. On 21 March 2018 the Administrative Jurisdiction Division held that, since the way in which the electronic system operated meant that the applicant himself could not prove that the grounds for judicial review had been filed successfully and within the time-limit, this was a matter that should be examined by the Regional Court. It therefore declared the further appeal well‑founded, quashed the judgment of 20 September 2017 and referred the case back to the Regional Court. 14. By a judgment of 19 September 2018, the Regional Court ruled again that the appeal was inadmissible. It held that the electronic system showed that the applicant had not uploaded the grounds for judicial review into the Regional Court’s system within the set time-limit and that there were no special facts and circumstances relating to the individual case, as referred to in the judgment in Bahaddar (cited above), which could be seen as a reason for not enforcing that procedural rule as laid down in domestic law (see paragraph 11 above). 15. The applicant did not lodge a further appeal to the Administrative Jurisdiction Division against the Regional Court’s judgment of 19 September 2018. INTERVIEWS with the repatrIation and departure service
16. In anticipation of the applicant’s removal, officers of the Repatriation and Departure Service (Dienst Terugkeer & Vertrek, “DT&V”) of the Ministry of Justice held return interviews (vertrekgesprekken) with the applicant several times. During these interviews the applicant repeatedly indicated that he did not wish to cooperate with his expulsion to Bahrain because he feared immediate arrest upon arrival, alleging that he was on a wanted list in connection with terrorism, but that he was willing to leave for Iran or Georgia. During an interview on 9 October 2018, he was notified by the officer of DT&V that it had proven impossible to arrange a departure to Georgia for him. When during an interview on 16 October 2018 the applicant was informed that departure to Iran had also proved to be impossible, he stated that he was not willing to return to Bahrain voluntarily. The authorities declared their intention to make a detention order with a view to his expulsion. 17. The Council for Legal Aid (Raad voor de Rechtsbijstand) informed Ms S. on 16 October 2018 that the applicant wished to be assisted by her in the proceedings regarding the detention order. This request was accepted by Ms S. on the same day. 18. The interview regarding the detention order took also place on 16 October 2018. The applicant’s lawyer was not present. After the applicant had repeated that he would not cooperate with his expulsion to Bahrain, the detention order was issued. 19. On 17 October 2018 the applicant’s lawyer was informed that the applicant’s expulsion to Bahrain would take place on 20 October 2018. The flight details were provided to her. 20. On 18 October 2018 a final return interview took place. During that interview the applicant was informed that he would be expelled to Bahrain on 20 October 2018. When he repeated that his life would be at danger upon return to his country of origin, he was informed that it was possible for him to make a new asylum application, but that this would not automatically lead to the cancellation of the flight. The applicant indicated that he wished to consult his lawyer to obtain advice. The applicant was given the opportunity to call Ms S., but he was unable to reach her. An officer of DT&V notified the applicant’s lawyer that same day by email that her client wished to consult her. THE Applicant’s Subsequent ASYLUM application, “last-minute” proceedings and removal
21. On 19 October 2018 at 3:08 p.m. Ms S. sent documents by email to the detention centre where the applicant was being held, noting that her client, the applicant, needed those documents for a subsequent asylum application that he wished to submit. She asked for them to be forwarded to him immediately. On 3.20 p.m. that day, the detention centre confirmed to her that the documents had been given to the applicant. 22. In the afternoon of 19 October 2018, the applicant informed the IND that he wished to submit a subsequent asylum application. He submitted the documents had he had received from his brother via Ms S. These were copies of documents in Arabic with the letterhead of the Bahraini Public Prosecutor’s Office on them. 23. The next morning, on 20 October 2018, the applicant was transferred to Schiphol Airport and interviewed by an officer the of IND about his subsequent asylum application. A report was drawn up of the interview, which was conducted in Arabic with the assistance of an interpreter. This interview was not attended by a lawyer. According to the transcript of the interview, the officer who conducted the interview had asked an Arabic speaking colleague about the content of the documents beforehand. During the interview, the applicant stated that he had only just received these documents from his brother. Although he could not answer the question how exactly his brother had obtained the documents, he knew that his brother had tried to obtain several documents from the Bahraini Public Prosecutor’s Office. The applicant stated that his name was mentioned in these documents, that he had been charged with participating in a terrorist organisation and confirmed that the documents were a copy of the record of the questioning of a person who had divulged the applicant’s name while being questioned. The officer asked the applicant if his brother had the original documents in his possession; the applicant answered that he did not know. 24. At the end of the interview the applicant was informed immediately, orally and informally, that his request would be denied. The transcript of the interview contains the following text:
“Because of time and because you are about to be expelled, I will give you my decision immediately. Because the documents are not original and are in Arabic, they cannot serve as new evidence. I did not have the time to get the original documents. I only had four days. Maybe you can give me time. I stand by my decision that your application will be rejected. I kindly request you to give an extension of one week to get the documents. Your application was not deemed credible during the previous procedure; you had more time than the four days to get evidence. This means that I am not going to give you a week’s extension.”
25. By virtue of a written decision (besluit als bedoeld in artikel 3.1 Vreemdelingenbesluit; see paragraph 38 below) taken by the Deputy Minister that day (20 October 2018), the applicant was informed that his subsequent asylum application could be declared inadmissible because no new elements or findings had emerged during the interview that would be relevant to the assessment of the application. In that connection the Deputy Minister noted that no probative value could be attached to the documents submitted by the applicant because they were not original documents, they were untranslated, and the applicant could not explain how his brother had obtained the documents. The Deputy Minister also considered that because the applicant had not submitted the documents until just before the planned removal, his subsequent asylum request had only been made to delay or prevent the expulsion. The decision stated that the applicant must leave the Netherlands immediately. The decision further indicated that a copy of the decision and a copy of the report of the interview had been faxed to his lawyer, Mr B., and that an objection could be lodged against the decision and a request for interim relief could be submitted to the Regional Court. It can be seen from the case file that the fax was sent to Mr B. at 3.13 p.m. 26. The applicant did not make use of those remedies. 27. By an aeroplane with its departure scheduled for 2.10 p.m. on that day (20 October 2018), the applicant was expelled to Bahrain. EVENTS AFTER removal
28. On 29 October 2018 Ms S. informed the DT&V that the applicant had been arrested and detained immediately on arrival in Bahrain. She argued that it was very likely that he would be tortured by the Bahraini authorities, which would violate Article 3 of the Convention. She asked for the removal order to be set aside and for the applicant to be returned to the Netherlands as soon as possible. These requests were denied. 29. On 22 November 2018 a written notification of the Government’s intention to reject the applicant’s subsequent asylum application was sent to Ms S. The intention to reject this application was based on the same reasoning as the decision of 20 October 2018 (see paragraph 25 above). 30. By a letter of 4 December 2018, Ms S. informed the IND that she was no longer in touch with the applicant and could therefore not continue to act as his legal representative. 31. The applicant’s subsequent asylum application was rejected by the Deputy Minister by a decision of 22 February 2019 on the basis that no new elements or findings had been presented. The Deputy Minister noted that the applicant had submitted new documents in Arabic which were not authentic, held that the applicant should have submitted these earlier in the proceedings and that he should have been able to answer certain questions about the documents. 32. By a letter of 22 February 2019, Ms S. returned the decision of 22 February 2019 to the Deputy Minister, repeating that as she was no longer in contact with the applicant she could not continue to act as his legal representative. No application for judicial review of the decision of 22 February 2019 was lodged on the applicant’s behalf. 33. On 28 February 2019 the applicant was convicted for the possession of weapons and ammunition and taking part in terrorist activities. He was sentenced to life imprisonment and a fine of 500 dinars. The applicant also lost his Bahraini nationality. 34. That verdict was upheld on appeal on 12 May 2019, although it appears that the applicant’s nationality was reinstated by royal decree. The applicant’s legal representative informed the Court that an appeal on points of law against the upheld verdict of life imprisonment had also been dismissed. 35. The applicant alleged that he had been tortured by the Bahraini authorities to extract a confession and that he had not had a fair trial. Furthermore, he submitted that detention conditions were very poor: he was being detained in an overcrowded cell which he shared with twelve other inmates. He could see his family once a month for half an hour, during which direct physical contact was not permitted. Other visitors were not allowed. He was not allowed unmonitored contact with his lawyer. 36. On 15 August 2023 the applicant’s representative informed the Court that a group of prisoners, including the applicant, had gone on hunger strike to protest against their detention conditions. RELEVANT LEGAL FRAMEWORK AND practice
DOMESTIC LAW AND PRACTICEAliens Act 2000

37. Section 30a, subsection 1 of the Aliens Act 2000 provides:
“1. An application for a temporary residence permit as referred to in section 28 may be declared inadmissible within the meaning of Article 33 of the Asylum Procedures Directive if:
...
d. the alien has submitted a subsequent application which he has not based on any new elements or findings and which has not raised any new elements or findings that could be relevant to assessment of the application; or ...”
Aliens Decree 2000
38. Article 3.1 of the Aliens Decree provides:
“... 2. If an application for a temporary asylum residence permit is submitted, the removal shall not take place unless:
...
e. the alien has submitted a first subsequent application merely in order to delay or frustrate the enforcement of the return decision and the application can be declared inadmissible pursuant to section 30a, subsection 1 (d) of the Aliens Act. 3. The exceptions referred to in paragraph 2 shall not apply if removal would result in a violation of the Convention relating to the Status of Refugees, obligations under EU law, the European Convention for the Protection of Human Rights and Fundamental Freedoms, or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 4. A decision on whether an application has been submitted merely in order to delay or frustrate the enforcement of the return decision as referred to in paragraph 2 (e) must take account of all circumstances of the case, including in particular:
a. the period within which the alien has made known his application for a temporary asylum residence permit in the light of his statements about this;
b. the circumstances in which the alien was found or made his application known;
...
e. the substantiation of the application.”
39. This section transposes the obligations emanating from Article 41 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (see paragraph 42 below). Aliens Act Implementation Guidelines 2000
40. Chapter C1/2.9 of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000) defines a “last-minute application” as one submitted after concrete steps have been taken to effect the applicant’s removal. As soon as the alien indicates that he or she wishes to submit a last‑minute application, the IND will assess whether it is possible to process the application before the planned removal or transfer within the time-limits of the one-day asylum test. If the subsequent application for a temporary asylum residence permit cannot be processed before the planned removal or transfer, the IND will first assess whether the submission of the application means that the removal or transfer has to be cancelled in accordance with Article 3.1 of the Aliens Decree or that it can proceed on the basis of one of the exceptions referred to in Article 3.1, paragraph 2, of the Aliens Decree. In that case, the IND will determine where and how the alien (contrary to the normal procedure) can submit his or her application for a temporary asylum residence permit. After the application has been submitted, the IND will conduct a “second interview” (this refers to the interview on the substance of the application for international protection) as soon as possible. During the interview, the IND will give the alien the opportunity to present new elements and findings and will enquire about the reasons for the late submission of the application. On the basis of the interview and the other circumstances of the case, including information from the DT&V, the IND assesses whether or not the removal or transfer can proceed. If the removal or transfer is to proceed, the alien and his or her lawyer will be notified in a decision to that effect. 41. Chapter C1/4/6 of the Aliens Act Implementation Guidelines 2000, on the assessment of subsequent applications, provided at the relevant time that, if the previous application for a temporary asylum residence permit by the IND had been rejected on the basis of the implausibility of the alien’s statements, the elements or findings that the alien brought forward in the context of a subsequent application for a temporary asylum residence permit had to remove the implausibility of the statements in order to qualify as elements or findings as referred to in section 30a(1)(d) of the Aliens Act. Furthermore, at the relevant time, this chapter provided that if, within the procedure for a subsequent application for a temporary asylum residence permit, the alien submitted elements or findings that dated from before the first rejection, the IND would assess whether the alien could have submitted those elements or findings within the previous procedure for the application for a temporary asylum residence permit. In principle, the IND requires that the alien must submit all information and documents known to him or her in the context of the application for a temporary asylum residence permit. If, within the procedure for a subsequent application for a temporary asylum residence permit, the alien submits elements or findings that date from before the previous rejection decision, the alien must demonstrate that he or she could not have reasonably submitted those elements or findings earlier. EUROPEAN UNION LAW AND PRACTICEAsylum Procedures Directive

42. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, provides, inter alia, as follows:
Article 33: Inadmissible applications
“... 2. Member States may consider an application for international protection as inadmissible only if:
... (d) the application is a subsequent application, where no new elements or findings relating to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU have arisen or have been presented by the applicant; or ...”
Article 40: Subsequent application
“1. Where a person who has applied for international protection in a Member State makes further representations or a subsequent application in the same Member State, that Member State shall examine these further representations or the elements of the subsequent application in the framework of the examination of the previous application or in the framework of the examination of the decision under review or appeal, insofar as the competent authorities can take into account and consider all the elements underlying the further representations or subsequent application within this framework. 2. For the purpose of taking a decision on the admissibility of an application for international protection pursuant to Article 33(2)(d), a subsequent application for international protection shall be subject first to a preliminary examination as to whether new elements or findings have arisen or have been presented by the applicant which relate to the examination of whether the applicant qualifies as a beneficiary of international protection by virtue of Directive 2011/95/EU. 3. If the preliminary examination referred to in paragraph 2 concludes that new elements or findings have arisen or been presented by the applicant which significantly add to the likelihood of the applicant qualifying as a beneficiary of international protection by virtue of Directive 2011/95/EU, the application shall be further examined in conformity with Chapter II. Member States may also provide for other reasons for a subsequent application to be further examined. 4. Member States may provide that the application will only be further examined if the applicant concerned was, through no fault of his or her own, incapable of asserting the situations set forth in paragraphs 2 and 3 of this Article in the previous procedure, in particular by exercising his or her right to an effective remedy pursuant to Article 46. 5. When a subsequent application is not further examined pursuant to this Article, it shall be considered inadmissible, in accordance with Article 33(2)(d).”

Outcome for Article 3: violation