ECtHR - A.M. v. the Netherlands (no. 29094/09), [Articles 3, 13 ECHR], 5 July 2016

Tuesday, July 5, 2016

The Third Section of the European Court of Human Rights has given its ruling in the case ofA.M. v. the Netherlands (no. 29094/09) concerning the removal of an asylum seeker to Afghanistan in light of the prohibition of torture and of inhuman and degrading treatment and the right to an effective remedy.   
The case relates to an Afghan national of Hazara origin, who had applied for asylum in the Netherlands. The applicant stated to fear persecution and ill-treatment in Afghanistan for his membership of the communist People’s Democratic Party of Afghanistan and for his involvement in the Revolutionary Guard and the party Hezb-e Wahdat. The Minister for Immigration and Integration rejected his asylum application based on the application of Article 1F of the 1951 Refugee Convention. The Regional Court of The Hague rejected his subsequent appeal. The applicant did not submit a further appeal with the Administrative Division of the Council of State. Instead, the applicant submitted an application to the ECtHR claiming that he would face a real risk of being subjected to treatment contrary to Article 3 ECHR, if expelled from the Netherlands to Afghanistan. He further claimed that he did not have an effective remedy on this point as safeguarded by Article 13 ECHR.
Notably, the Court rejected the argument by the government that the applicant had failed to exhaust the domestic remedies, as required by Article 35 § 1 ECHR. The Court observed that a further appeal to the Administrative Jurisdiction Division does not have automatic suspensive effect. This is however required under Article 13 taken together with Article 3 for a domestic remedy to be considered effective.
Nevertheless, the Court held that there had been no violation of Article 13 ECHR in conjunction with Article 3 ECHR. Under Article 13 ECHR, Member states are not required to set up a second level of appeal. As the appeal with the Regional Court of the Hague in asylum cases did have an automatic suspensive effect, the applicant had at his disposal an effective remedy for challenging the rejection of his asylum application. In addition, the Regional Court was empowered to rigorously examine any risks of treatment contrary to Article 3.
The Court further held that the applicant had also failed to demonstrate that there are substantial risks for believing that he would be subjected to treatment contrary to Article 3 ECHR. The Court observed that the applicant had remained in Afghanistan after the overthrow of the communist regime without encountering any problems with the Taliban. Moreover, the applicant had not been sought-after by the party Jamiat-e Islami or attracted any negative attention from any governmental or non-governmental body or any private individual in the country on account of his communist past or his activities for Hezb-e Wahdat. The Court also considered that there would not be a real risk of ill-treatment for people of Hazara origin. Lastly, there was no general situation of violence to the extent that there would be a real risk of ill-treatment for the general return of people to Afghanistan.

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Effective access to procedures
Effective remedy (right to)
Exclusion from protection
Inhuman or degrading treatment or punishment
Political Opinion
Right to remain pending a decision (Suspensive effect)