ITEMID: 001-78729
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: WARDESZKIEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Elżbieta Wardęszkiewicz, is a Polish national who was born in 1948 and lives in Ozorków. She is represented before the Court by Ms A. Kobylińska, a lawyer practising in Łódź. The Polish Government (“the Government”) are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 July 1991 the applicant filed a civil action with the Łódź Regional Court, Labour Law Division. The applicant was a victim of chemical poisoning to which she had been exposed while she was performing her job (she took part in a rescue operation as a doctor). She sued both her former employer (the ambulance station) and the company responsible for the accident. She sought a pension, damages and just satisfaction. The criminal responsibility for the accident as well as the fact that the applicant was a victim of the accident had already been established by the criminal court.
On 5 September 1991 the first hearing was held.
Subsequent hearings were held on 3 December 1991, 20 December 1991, 26 May 1992, 29 June 1992, 30 July 1992 and 3 November 1992.
On 24 November 1992 the Łódź Regional Court gave a judgment. It ordered the applicant’s former employer to pay her a pension and dismissed the remainder of the action instituted against her former employer. In addition, it transferred the part of the action lodged against the company responsible for the accident to another court as it considered that it was not competent to examine the case. It ruled that it was the Civil Division, not the Labour Law Division, that should deal with the part of the action against the company. Both the applicant and the defendant appealed.
On 31 March 1993 the Łódź Court of Appeal upheld the judgment. In its written grounds it stated inter alia that the transfer of the part of the action to another court was not consistent with relevant legal provisions. However since, according to Polish law, this was not subject to appeal, the Łódź Court of Appeal did not decide on the issue.
On 21 September 1993 the Łódź Regional Court was served with the files which had been transferred to that court on the strength of the judgment of 24 November 1992.
On 4 November 1993 the first hearing was held.
On 16 March 1995 the next hearing was held, during which the Łódź Regional Court ordered that the applicant’s case history be submitted by the hospitals which had treated the applicant even though the applicant’s case history had already been attached to the file.
On 14 February 1996 the next hearing was held, during which the Łódź Regional Court ordered that the evidence of various medical experts should be heard.
Subsequent hearings took place on 16 March 1995, 14 February 1996 and 18 February 1997.
On 5 June 1997 the Łódź Regional Court ordered that additional medical experts’ opinions should be submitted.
On 17 March 1999, after all the required opinions had been submitted, the next hearing was held. The Łódź Regional Court decided to hear one of the doctors who had given an opinion.
On 21 April 1999 the Łódź Regional Court found that the case was ready for examination.
On 29 April 1999 the Łódź Regional Court opened the proceedings anew in order to admit fresh evidence and fixed the date of a hearing for 31 May 1999.
On 31 May 1999 some of the doctors who had given opinions were heard.
On 14 June 1999 the Łódź Regional Court gave a judgment by which it ordered that just satisfaction and a pension be paid to the applicant. The judgment included an enforcement clause. Both the applicant and the defendant appealed against the award. The defendant also challenged the enforcement clause.
On 2 August 1999 the Łódź Regional Court quashed the enforcement clause. The applicant appealed.
On 9 November 1999 the Łódź Court of Appeal dismissed the applicant’s appeal concerning the enforcement clause.
On 12 September 2000 the Łódź Court of Appeal upheld the first-instance judgment as to the merits.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
For a more detailed presentation of the relevant domestic law see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005; Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005.


ITEMID: 001-59074
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ZOON v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 and 6-3-b
JUDGES: Georg Ress
TEXT: 6. The applicant used to work as a general practitioner in Dirksland, the Netherlands.
7. On 9 September 1993 preliminary judicial investigations were initiated into allegations of forgery and fraud perpetrated by the applicant.
8. In the course of these investigations the applicant stated on his own initiative that in March 1993 he had performed euthanasia on, and at the request of, one of his patients. However, he had stated to the municipal coroner (gemeentelijk lijkschouwer) that the patient had died from natural causes.
9. The applicant was summoned to appear before the Regional Court (Arrondissementsrechtbank) of Rotterdam on the following charges:
(1) principally: murder; alternatively: taking another person's life at that person's request;
(2) in his capacity of physician, falsifying a death certificate as regards the cause of a person's death;
(3) falsifying prescriptions;
(4) forging and presenting prescriptions for the acquisition of an opiate.
10. On 30 August 1994 the applicant lodged an objection (bezwaarschrift) against the summons (dagvaarding) with the Regional Court.
11. Following a hearing in camera on 2 December 1994, the Regional Court dismissed the objection.
12. On 27 April 1995 a public hearing took place before the Regional Court, during which the case was considered on the merits. Both the applicant and his defence counsel, two lawyers from the same law firm in Rotterdam, were present. In their pleadings, counsel for the applicant raised the following points:
(a) the indictment was invalid (it being argued that certain points were not set out in sufficient detail);
(b) the prosecution case was inadmissible (the argument being that the use of far-reaching measures such as a house search and pre-trial detention was excessive and unlawful);
(c) the obligation incumbent on physicians to report cases of euthanasia themselves, thus exposing themselves to the risk of criminal punishment, ran counter to Article 6 of the Convention;
(d) the evidence had been obtained unlawfully;
(e) the prescriptions had only been forged in part, not in their entirety;
(f) the applicant had confessed to euthanasia, which precluded a conviction of the more serious crime of murder;
(g) there was a defence of force majeure in respect of the charges of euthanasia and forging the death certificate;
(h) the applicant had not acted culpably;
(i) in the event of a conviction, no sentence should be imposed as the applicant had suffered enough already as a result of the proceedings (which had destroyed his reputation and his practice) and further punishment would serve no legitimate purpose.
13. On 11 May 1995 the Regional Court gave judgment in public and in the presence of the applicant's defence counsel.
It is a matter of dispute whether the grounds of the judgment were read out in addition to the operative provisions or only the operative provisions. According to the Government, the President of the Regional Court, in accordance with the usual practice, read out the considerations relating to the validity of the summons, the main considerations underlying the dismissal of the defence plea concerning the admissibility of the prosecution, a summary of considerations relating to the evidence, and considerations as to whether the applicant was criminally liable. The applicant submitted, however, that his lawyers only heard the President state that he was acquitted of the principal charge under (1) and of the charge under (4), that the defence in respect of the alternative charge under (1) was rejected, that the applicant was found guilty of the alternative charge under (1) and the charges under (2) and (3), and that the seriousness of these offences warranted a suspended term of imprisonment of six months and a fine of 50,000 Netherlands guilders (NLG).
14. As to a written copy of the judgment, the Government submitted that they had ascertained that a signed version of the judgment in abridged form (kop-staart vonnis) was available when judgment was pronounced on 11 May 1995 and that it was the policy of the Regional Court of Rotterdam at the relevant time to provide a copy of the judgment in abridged form if this was requested in writing. According to the applicant, however, his lawyers telephoned the Regional Court's registry before the expiry of the period within which an appeal could be filed and were told that no judgment was available. Furthermore, the applicant's lawyers were not aware that the Regional Court had a policy of issuing copies of judgments only upon a request in writing.
15. The applicant did not appeal. The public prosecutor lodged an appeal but withdrew it on 2 June 1995.
16. The judgment in abridged form, a copy of which was submitted by the Government, contains, inter alia, the Regional Court's considerations as to the validity of the summons and as to the admissibility of the prosecution. As regards the latter, the Regional Court rejected the applicant's argument that the prosecution in respect of the charges of murder and euthanasia was inadmissible. It considered that since section 10 of the Act on the Disposal of the Dead (Wet op de Lijkbezorging) had not yet entered into force at the time of the impugned act, there had not existed a legal obligation for the applicant to report the fact that he had committed an offence.
17. The judgment in abridged form further lists those offences of which the Regional Court acquitted the applicant and those of which it found him guilty. In respect of the items of evidence on which the Regional Court based its verdict, the judgment in abridged form only states “P.M.”, for pro memoria, meaning that a detailed enumeration of the items of evidence would be produced at a later date, if necessary. The Regional Court proceeded to deal with, and reject, the applicant's subsidiary pleadings to the effect that if the prosecution was admissible, then the evidence had been obtained unlawfully. Subsequently, the Regional Court examined the criminal liability of the applicant and determined the sentence to be imposed on him, rejecting the applicant's claim that he had acted legitimately in a situation of force majeure. The judgment in abridged form concludes with a sentence stating that the judgment was read out in public on 11 May 1995.
18. According to Article 359 § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering – “CCP”), a judgment must detail the items of evidence on which a conviction is based. However, since – pursuant to Article 345 § 3 CCP – the court has to deliver the judgment within fourteen days following the closure of the trial, it was not unusual at the relevant time that initially a judgment in abridged form would be drafted in cases where the accused was convicted. Such a judgment did not give an account of the items of evidence on which the conviction was based. A complete version of the judgment was not prepared unless the convicted person or the public prosecutor lodged an appeal against the judgment. In that case the items of evidence were detailed in the judgment and the case file, including the complete judgment, was transmitted to the appellate court.
19. Where a judgment in abridged form was prepared, compliance with Article 365 § 1 CCP, which required that a (full) judgment be signed within forty-eight hours after its delivery by the judges who examined the case, was precluded. However, the judgment in abridged form would be signed in that form and, as soon as this had been done, the accused or his counsel would be able to inspect it, as well as the official records of the hearings, at the registry of the trial court, as was prescribed by Article 365 § 3 CCP for full judgments.
20. It appears that at the relevant time the Regional Court of Rotterdam had a practice of providing the defence with a copy of the judgment in abridged form only if a request was made in writing.
21. According to Article 404 taken in conjunction with Article 408 § 1 (a) CCP, an appeal against a judgment of the regional court had to be lodged with the court of appeal (Gerechtshof) within fourteen days following the day on which the judgment was read out in public. Once lodged, the appeal could be withdrawn by the person who instigated it, at the latest just prior to the start of the hearing on appeal (Article 453 § 1 CCP).
22. The Supreme Court (Hoge Raad) has held that an appeal filed outside the fourteen-day period is inadmissible even if the accused or his counsel have, through no fault of their own, been unable to inspect the judgment of the regional court within the fourteen-day period (judgment of 11 November 1986, Nederlandse Jurisprudentie (NJ) 1987, no. 568).
23. When the court of appeal examines the case, it should have before it a complete version of the judgment of the lower court. If this is not the case, the judgment is null and void and should be quashed (vernietigd) by the court of appeal on formal grounds pursuant to Article 359 §§ 1 and 10 CCP. However, this does not mean that the court of appeal must refer the case back to the regional court: Article 423 § 2 CCP provides that a case should be referred back to a regional court only if the judgment is quashed and the regional court has not decided on the merits of the case. This provision thus embodies the principle of the right to be tried at two levels by courts competent to examine the facts.
24. The proceedings before the court of appeal offer a full new hearing since most of the provisions of the CCP which apply to the proceedings before the lower court also apply on appeal (Article 415 CCP). The accused who has lodged the appeal may at his discretion submit his objections and possible additional objections in writing, both before and during the hearing. He may also submit additional objections orally in the course of the hearing until the formal closure of the appeal court's examination (Articles 416 and 311 §§ 1 and 4 CCP).
25. In a case which led to a judgment of the Supreme Court on 17 September 1990, the accused complained before the court of appeal that the judgment of the first-instance court did not detail the items of evidence. The court of appeal subsequently quashed the judgment because the items of evidence were not detailed but it did not refer the case back to the regional court, since the latter court had already decided on the merits of the case (see paragraph 23 above). In cassation the applicant invoked Article 6 § 3 of the Convention.
The Advocate-General (Advocaat-Generaal) at the Supreme Court submitted an advisory opinion (conclusie) to the effect that the fact that the judgment of the first-instance court had not detailed the items of evidence did not prevent the accused from conducting his defence on appeal since, firstly, an accused does not have to defend himself against the judgment by which he was convicted but against the accusation levelled against him by the public prosecution department; and secondly, the court of appeal examines the case independently on the basis of the trial and the summons and not on the basis of the judgment of the first-instance court. The Supreme Court eventually dismissed the appeal and, for its reasoning, referred to the advisory opinion of the Advocate-General (NJ 1991, no. 12).
26. When only the accused has filed an appeal, the court of appeal may impose a sentence heavier than that imposed at first instance if that decision is reached unanimously (Article 424 § 2 CCP). Unanimity is not required if the public prosecutor has also filed an appeal. If it is found that the public prosecutor has filed an appeal with the sole aim of preventing the unanimity requirement in Article 424 § 2 from applying, his appeal may be declared inadmissible (see the judgments of the Supreme Court of 22 June 1982, NJ 1983, no. 73, and 29 March 1983, NJ 1983, no. 482).
27. The practice described in paragraph 18 above was subsequently codified in Articles 138b and 365a CCP, which entered into force on 1 November 1996, after the events complained of. If no appeal is lodged, a complete judgment will be made available upon request of the prosecutor or the accused or his lawyer within three months after delivery of the judgment, unless this request is devoid of reasonable interest (Article 365c §§ 1 and 2 CCP, which also entered into force on 1 November 1996).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23281
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: ARCILA HENAO v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Francisco Javier Arcila Henao, is a Colombian national, who was born in 1970 and currently resides in Amsterdam. He is represented before the Court by Mr R. Bosma, a lawyer practising in Assen.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In its judgment of 21 July 1997 the Haarlem Regional Court (arrondissementsrechtbank) convicted the applicant of carrying drugs when he tried to enter the Netherlands via Schiphol airport on 7 May 1997. He was sentenced to fifteen months’ imprisonment. The applicant did not appeal.
On 22 October 1997, on the basis of the conviction, the State Secretary of Justice (Staatssecretaris van Justitie) declared the applicant an undesirable alien (ongewenstverklaring), entailing an exclusion order valid for 10 years. The applicant again did not appeal. On 3 March 1998, after having served his sentence, the applicant was expelled to Colombia.
On 10 December 1998, the applicant travelled back to the Netherlands, where he was arrested for carrying drugs. On 31 March 1999, the Hague Regional Court convicted him of offences under the Opium Act (Opiumwet) and sentenced him to two years’ imprisonment. The applicant did not appeal. Whilst serving his sentence, the applicant was found to be HIVpositive for which he was given treatment in the form of antiretroviral medication as from September 1999.
On 3 February 2000, in view of his imminent release from prison, his medical condition and the allegedly prohibitive costs of antiretroviral medication in Colombia, the applicant requested the Minister of Justice to lift the decision of 22 October 1997 in which he was declared an undesirable alien.
On 3 April 2000 the applicant further applied for a residence permit for the purpose of medical treatment. The State Secretary of Justice rejected this request on 6 April 2000. The State Secretary noted that the decision of 22 October 1997 declaring the applicant an undesirable alien had obtained the force of res iudicata. Consequently, as long as this decision was valid, the applicant was ineligible for a residence permit. However, in view of the fact that the applicant had filed a request to lift the decision of 22 October 1997 in respect of which the State Secretary intended to seek the views of the Medical Advice Bureau (Bureau Medische Advisering) of the Ministry of Justice before deciding on this request, the applicant was granted a stay of expulsion.
On 7 April 2000, after having served his sentence, the applicant was released from prison but was immediately placed in aliens’ detention (vreemdelingenbewaring) for expulsion purposes as he did not hold a residence title, had been declared an undesirable alien and did not have sufficient financial means to provide for his subsistence or to finance the journey to his country of origin. The applicant’s lawyer filed an appeal against this placement.
On 12 April 2000, having noted that appeal, the State Secretary informed the applicant’s lawyer that the applicant would be released from aliens’ detention on the same day and, as his placement in aliens’ detention had been unlawful from the outset given the decision of 6 April 2000 to stay the applicant’s expulsion, he would be awarded compensation for the time spent in such detention, as well as compensation for the legal costs incurred.
On 19 April 2000, the applicant’s lawyer withdrew the appeal against the applicant’s placement in aliens’ detention. On the same day, the applicant’s lawyer filed an objection (bezwaar) with the State Secretary against the negative decision on the applicant’s request for a residence permit on medical grounds.
According to a report dated 17 October 2000 of the Medical Advice Bureau of the Ministry of Justice, the applicant was HIV-positive and suffering from Hepatitis B. His continuous treatment with antiretroviral medication had resulted in an improvement of his immune system. It further stated that the applicant was fit to travel. In a supplementary report of 27 December 2000, the Medical Advice Bureau informed the State Secretary that, if the applicant’s treatment were to be stopped, it could be expected that his health would relapse (reduced immunity and opportunistic infections), giving rise to an acute medical emergency which, failing treatment, would be of a permanent character.
On 11 January 2001, the State Secretary put additional questions to the Medical Advice Bureau, which included questions about the possibilities for treatment in the applicant’s country of origin. On 31 January 2001, the Medical Advice Bureau informed the State Secretary that treatment for HIV/AIDS was in principle possible in Colombia both in private and public health care institutions, but that there could be delays in the delivery of medication. Moreover, in public health care institutions it was possible to face a waiting list of one year.
On 15 February 2001 the State Secretary rejected the applicant’s request to lift the decision declaring him an undesirable alien, holding that this was only possible after the person concerned had resided outside the Netherlands for a period of ten years and had not re-offended. As the applicant did not comply with these conditions, his request could not be met. As to the applicant’s arguments based on his medical condition, the State Secretary noted that treatment was available in Colombia and that it was therefore possible to pursue the applicant’s medical treatment there. The State Secretary considered that it was the applicant’s own responsibility to continue his medical treatment in Colombia and thus to prevent an acute medical emergency from arising. The State Secretary concluded, therefore, that there was no life-threatening situation outweighing the public interests of the Netherlands in protecting public order. In this respect, the State Secretary also took into account that the applicant’s mother, sister and three brothers were living in Colombia, and it had not been shown that they would be unable to provide the applicant with the necessary care and support. The State Secretary further decided not to allow the applicant to remain in the Netherlands pending the outcome of possible further proceedings on his request to lift the decision declaring him an undesirable alien and, consequently, issued an order for his expulsion.
Also on 15 February 2001, the State Secretary rejected the applicant’s objection to the negative decision of 6 April 2000 on his request for a residence permit for medical treatment. As the applicant had been declared an undesirable alien and as his request to lift this decision was rejected, the applicant was ineligible for a residence permit. Insofar as the applicant relied on Article 3 of the Convention, the State Secretary held the applicant had not demonstrated any concrete reasons or established that, if expelled to Colombia, he would face a real risk of treatment contrary to this provision. The mere reliance on the applicant’s illness was found insufficient, as he could be expected to make the necessary effort to continue his medical treatment in Colombia. The State Secretary further decided that the applicant was not allowed to remain in the Netherlands pending possible appeal proceedings against this decision, and issued an order for the applicant’s expulsion.
On 6 March 2001 the applicant, via a pastoral organisation in Amsterdam, informed his lawyer that his mother had died in Colombia on 26 May 1999, that his 72 year-old father has no income and that he had five brothers, respectively 22, 18, 17, 13 and 8 years old, and one 13 year-old sister. His father and six siblings were all residing in Colombia and were maintained by his 22 year-old brother.
On 14 March 2001, the applicant’s lawyer filed an objection against the State Secretary’s refusal on 15 February 2001 to lift the decision declaring the applicant an undesirable alien. On the same day, the applicant’s lawyer filed an appeal with the Hague Regional Court against the State Secretary’s refusal on 15 February 2001 to grant the applicant a residence permit on medical grounds. The applicant’s lawyer further requested the Regional Court to issue an interim measure to allow the applicant to stay in the Netherlands pending the outcome of these appeals and the proceedings concerning his objection filed with the State Secretary on 14 March 2001.
On 18 September 2001 the State Secretary rejected the applicant’s objection filed on 14 March 2001, in respect of the decision to reject the applicant’s request to lift the decision to declare him an undesirable alien, and upheld the decision of 15 February 2001. On 12 October 2001, the applicant’s lawyer filed an appeal against this decision with the Hague Regional Court.
On 16 August 2002, a hearing on the two appeals filed by the applicant was held before the Hague Regional Court sitting in Almelo. In the course of this hearing, the Regional Court heard the applicant who stated that he currently felt well although he was tired and sometimes had problems with eating, which were the side effects of his medication. He further stated, inter alia, that he had worked as a cleaner. The Regional Court also heard an official from the competent Ministry, as well as a co-ordinator of Sida Vida, a Dutch support group for Spanish and Portuguese speaking persons suffering from HIV/AIDS.
In its decision of 29 October 2002 the Hague Regional Court rejected both appeals. Insofar as the applicant relied on Article 3 of the Convention, the Regional Court held that only in cases where an appellant finds himself in an advanced and directly life-threatening stage of an incurable disease, where there are no medical facilities and social care in the country of destination and where an appellant was been dependent to a large extent on the facilities and care from which he has benefited in the Netherlands for a considerable period of time, an expulsion could be regarded as being contrary to Article 3.
However, it appeared from the statements given by the applicant and the co-ordinator of Sida Vida that the applicant’s expulsion to Colombia would not immediately result in an acute medical emergency, as the applicant’s current condition was good and he was capable of working. On the basis of the medical evidence submitted about the applicant’s medical condition and the likely consequences of an interruption of his medical treatment, the Regional Court did not find the applicant to be at an advanced and directly lifethreatening stage of his disease. Considering that the applicant could fall back on the moral support of his family, the Regional Court held that the risk of relapse and less favourable circumstances did not warrant another finding. It therefore concluded that the refusal to lift the decision declaring the applicant an undesirable alien and the refusal to grant him a residence permit for medical reasons were not contrary to Article 3 of the Convention.
As to the question whether the State Secretary had justly rejected the applicant’s request to lift the decision declaring him an undesirable alien, the Regional Court noted that it was not in dispute that the applicant had not complied with the requirement of living abroad for ten years.
As to the question whether the State Secretary, in the determination of the question whether there were compelling reasons of a humanitarian nature for lifting the decision, had correctly balanced the interests involved, the Regional Court noted that the applicant had never lawfully resided in the Netherlands and that, after he had been declared an undesirable alien in 1997, he had again been convicted of drug trafficking. It further noted the undisputed fact that the applicant had no ties with the Netherlands other than those directly flowing from his arrest and conviction.
The Regional Court agreed with the State Secretary that the Netherlands’ interest in excluding the undesirable alien outweighed the limited possibilities of medical treatment in Colombia. It further found that the State Secretary had correctly considered that the applicant was in no different position than other HIV-positive Colombian nationals who were also affected by the problems of the Colombian health care system and who were also not admitted to the Netherlands. This was all the more so since the applicant’s disease had manifested itself in the Netherlands solely on his arrest and conviction. Had the applicant not been arrested and pursued his journey as planned, he would – like his HIV-positive compatriots – have had to rely on treatment in Colombia.
The Regional Court held that, in these circumstances, the fact that the applicant’s disease manifested itself in the Netherlands did not give rise to an obligation for the Netherlands’ authorities to care for his health. It therefore rejected as ill-founded the applicant’s appeal against the refusal to lift the decision declaring him an undesirable alien. As this decision rendered him ineligible for a residence permit, it also rejected the applicant’s appeal against the refusal to grant him one for medical reasons.
On the same day and in view of its decision on the applicant’s two appeals, the Hague Regional Court sitting in Almelo also dismissed the applicant’s request for an interim measure pending the outcome of the proceedings on these two appeals.
In a letter of 23 December 2002, an intern at the Amsterdam Academic Medical Centre (AMC) informed the applicant’s lawyer that the applicant was currently receiving treatment for an HIV-infection at the AMC policlinic. His treatment had started with a CD4 level of less than 100/m2 and, under the influence of the treatment, this level had risen since. If the applicant remained under medical control and continued to take medication, his short and medium term prognosis was reasonable. However, past experience had shown that about 90% of patients whose treatment had started with a CD4 level under 100, like the applicant, and who stopped taking medication, died within a year, usually from an opportunistic infection such as pneumonia or toxoplasmosis.