| Applicant name | AZZAQUI |
| Applicant type | Natural person (immigrant) |
| Number of applicants | 1 |
| Country | Netherlands |
| Application no. | 8757/20 |
| Date | 30/05/2023 |
| Judges | Pere Pastor Vilanova, President, Jolien Schukking, Yonko Grozev, Georgios A. Serghides, Peeter Roosma, Andreas Zünd, Oddný Mjöll Arnardóttir |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Not necessary in a democratic society (public safety and preventing disorder or crime) |
| Type of privacy | Relational privacy; bodily and psychological integrity |
| Keywords | Immigrant; expulsion; criminal past; mental treatment |
| Facts of the case | Applicant is a Moroccan national born in 1972; he entered the Netherlands in 1982. In the same year, the Dutch authorities granted him a residence permit to live with his father. In May 1991 he obtained a permit for permanent residence, but between 1987 and 1996, he was convicted of multiple crimes, including (attempted) theft, burglary, extortion, threats and robbery, and finally, rape. He was placed in a facility, where he could be treated for psychological deficiencies. The order to be treated was extended time and again, but finally, in 2016, because the applicant had shown progress and consistent good behaviour, the Regional Court extended the mandatory placement in the institution for one year and granted conditional release from confinement in a custodial clinic. The conditions included, amongst others, that the applicant would not commit a criminal offence, that he would remain in the country, that he would put himself under the supervision of the probation services and adhere to all their regulations and instructions, that he would live in an assisted living facility and that he would not use drugs or alcohol. In 2017, the Deputy Minister of the Netherlands informed the applicant that his residence permit would be revoked, given his criminal past. The applicant relapsed into substance abuse and was ordered for treatment in the facility for treatment once again; his appeals before courts of law against revoking his residence permit were unsuccessful. |
| Analysis | Several points are worth pointing to: 1. The ECtHR reaffirms the prerogative of nation states to control their territory and entry of that territory, but when a permit is revoked or a ban imposed, such will be evaluated under the criteria of Article 8 ECHR. In this case, the applicant does not rely on an interference with his family life, which is generally seen as a stronger claim, but on an interference with his private life. Interestingly, in many cases, one of the primary discussions in such cases is whether indeed the applicant had a private life in the country of residence, whether that was sufficiently strong to bring it under the scope of the Convention, whether the applicant had a private life in another country, such as the country of birth, and whether it was possible for the applicant to establish such private life in that country. In this case, however, the Netherlands simply accepts that the applicant’s private life was interfered with. Why it opts for this position is unclear; it could be that it feels that this should not be the core issue of the judgement, but rather the substantive evaluation under the second paragraph of Article 8 ECHR, it could be that it feels that the ECtHR is so lenient on this point that it makes little sense to dispute that the applicant’s right to privacy had been interfered with, or perhaps it was so convinced that it had good grounds to expel the applicant, that is simply didn’t bother to argue that applicant’s private life had not been interfered with. 2. Because the decision by the state had a legal basis and aimed at guaranteeing public safety and preventing disorder or crime, the ECtHR turns to the question whether the decision was necessary in a democratic society. On this point, the Court repeats its long list of relevant factors for evaluating the legitimacy of that decision, such as the nature of the offence committed by the applicant, the length of applicant’s stay in the country and the existence of family ties, but the ECtHR adds to this list that medical aspects should also be taken into account, including the availability and accessibility of medical treatment in the country of destination. It adds that it is relevant whether the immigrant having committed criminal activities suffered from a mental illness having an impact on the level of criminal culpability. It is unsurprising that, given these general parameters for evaluating the matter, turning to the case at hand, the ECtHR is critical of the governmental decision. Although the offenses committed by the applicant were serious, he was diagnosed with a personality disorder with schizotypal and antisocial traits and episodic psychotic experiences to such an extent that the offences could only be attributed to him to a reduced extent. Furthermore, the applicant had shown good behaviour during his treatment, and otherwise made positive progress. While it is true that at one point, he mentally deteriorated and relapsed into substance abuse, this, the ECtHR finds, was prompted by the Deputy Minister’s intention to revoke his residence permit. The applicant’s treatment had been aimed at reintegration into Dutch society, so that no steps had been taken to prepare him for a return to Morocco. Finally, the ECtHR points out that the decision on domestic level did not sufficiently contemplate on medical aspects, including the availability and accessibility in Morocco of medication and treatment matching the applicant’s needs. Hence, it finds a violation of Article 8 ECHR. 3. In a partly dissenting opinion, trying to start an important and interesting discussion, judge Serghides had his ceterum censeo Carthaginem esse delendam moment. He disagrees both theoretically and practically that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant. He thinks that, from a theoretical point of view, the question of whether there is a violation on the one hand, and the question of just satisfaction, should not be merged. Article 41 ECHR sets out three requirements which must be satisfied cumulatively for the Court to award just satisfaction: (a) the Court finds that there has been a violation; (b) the domestic legal system only allows for partial reparation; and (c) the Court considers it necessary to afford just satisfaction. In this case, the ECtHR only discusses point (a), while Serghides feels that in every case, it should assess all three points. The failure to award the applicant a sum in respect of non-pecuniary damage for the violation of his right amounts to rendering the protection of his right illusory and fictitious. He feels, from a practical point of view, that in this case, the applicant should have been awarded damages. While the applicant made a reasoned argument why he thought he should be awarded damages and the government made a reasoned argument why it thought such damages did not need to be awarded, the Court simply ignores these arguments and presents a conclusion. |
| Other Article violation? | – |
| Damage awarded | the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant |
| Documents | Judgment |