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Amicus Curiae brief In the case X v. The Netherlands (appl. nr. 31252/03)

Amicus Curiae Brief In the case X v. the Netherlands (File nr. 31252/03). Submitted by: VluchtelingenWerk Nederland (the Dutch Refugee Council) PO Box 2894, 1000 CW Amsterdam The Netherlands tel: +31 (0)20-3467200 The European Council on Refugees and Exiles (ECRE) 103 Worship Street London EC2A 2DF United Kingdom tel: +44-(0)20-73777556 Nederlands Juristencomité voor de Mensenrechten (NJCM - Dutch section of the International Commission of Jurists) PO Box 9520 2300 RA Leiden The Netherlands tel: + 31 (0)71-5277748 Stichting Rechtsbijstand Asiel (SRA - Legal Aid) PO Box 5418 6802 EK Arnhem The Netherlands tel.: + 31 (0)26 - 3531850 Table of Contents 1. 2. 2.1 2.2 2.3 2.4 3. 4. 4.1 4.2 4.3 5.

Introduction Marginal judicial scrutiny in asylum cases Marginal judicial review Full judicial review Full or marginal review? Conclusion Marginal scrutiny and article 3 and 13 EVRM Comments Non governmental organizations Academics Conclusion Conclusion

Endnotes Annex 1: The AC-procedure Annex 2: The Normal (OC) Procedure Annex 3: Judicial review of asylum cases in other European countries

Amicus Curiae Brief in the case X v. the Netherlands (File nr. 31252/03) 1. Introduction In most European countries, the facts in asylum cases are reviewed fully in at least one instance. In the Netherlands however, the scope of the judicial review in asylum cases is very limited. The most important parts of the decision on the asylum request, namely the decision on the credibility of the asylum account and the decision on what the asylum seeker can expect, based on the statements which are deemed credible, are reviewed only marginally by the judiciary. The fact that a large part of the minister's decision on an asylum request is subjected to a marginal scrutiny, leaves substantial room for discretion on the part of the minister. A lot of asylum requests are rejected because the minister deems the asylum account not credible. Because of the jurisprudence of the AJD, it has become increasingly difficult, almost impossible, to challenge the decision of the minister on the credibility of the asylum account in court. In many asylum cases the applicant has, according to the minister, not submitted sufficient travel and/or identity documents. In these cases, the credibility of the asylum account is subject to an extra marginal review by the court and the AJD At the same time, the administrative review has been abolished with the introduction of the Aliens Act 2000. Instead, the minister issues a letter of intention before taking the decision on the asylum application. The applicant can submit his view on this intended decision. In practice this so called intention procedure (voornemen procedure) is not comparable to administrative review. We will argue that the AJD's doctrine that limits judicial review of facts in asylum cases, is at odds with the requirements of articles 3 and 13 of the ECHR. Many NGO's and academics have criticized the marginal scrutiny in asylum cases. These comments will focus on the Dutch jurisprudence concerning the scope of the judicial review in Dutch asylum law. After this, we will explain why we think that the jurisprudence of the AJD is at odds with articles 3 and 13 of the ECHR. We will also give an overview of the criticism of Dutch and international NGO's and academics against the jurisprudence of the AJD. Finally we will give some information on the scope of the judicial review in asylum cases in other European countries. For more information on the Dutch asylum procedure see annex 1. 2. Marginal judicial scrutiny in asylum cases Since April 2001, following the introduction of the Aliens Act 2000, the Administrative Jurisdiction Division of the Council of State (AJD) acts as the court of final instance in asylum cases. In the last few years, the AJD has developed jurisprudence on the scope of judicial review in asylum cases. In this paragraph we will try to explain this jurisprudence. 2.1 Marginal judicial review According to the AJD's doctrine, the following elements may only be reviewed marginally by the courts: •

The minister's opinion on the credibility of the asylum account

We would like to draw the attention of the Court to a case of 27 January 2003. In this case the applicant argued before the AJD that marginal review of the establishment of the facts and the credibility of the account of the asylum seeker is not lawful, because this marginal review has no basis in the Aliens Act 2000 nor in the former Aliens Act. The AJD stated, in a judgment that was unusually extensive, the reasons why the minister's opinion on the credibility of the asylum account should be subjected to a marginal judicial scrutiny. 1: In administrative law, of which migration law forms a part, the administration, in this case the minister, executes the law and it is the judge’s task to review the decisions, which are made in the implementation of the minister's competences,

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AJD 27 January 2003, nr. 200206297/1

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if challenged in appeal, both on lawfulness, within the limits of the grounds for appeal, and, of its own accord, on rules of public nature. Apart from this, the minister is fully accountable to Parliament for the implementation of government policy. The minister's assessment of the applicant's account is usually not about the question, whether and to what extent the statements about the facts that the asylum seeker has put forward as part of his asylum request, have to be taken for facts. The asylum seeker is after all in a lot of cases not able, nor can it be reasonably asked from him, to back up his narrative with conclusive evidence. To compensate the asylum seeker where this difficulty arises, and still be able to make an adequate assessment of the request in light of the applicable prescriptions, the minister, according to paragraph C1/1 sub 2 and paragraph C1/3 sub 2.2 and 3.4 of the Aliens Circular 2000, as a rule holds the applicant's account and the facts presented therein for true, if the asylum seeker has answered to all questions put to him as comprehensively as possible and the account in general is intrinsically consistent and not implausible and is in accordance with what is known about the general situation in the country of origin. Moreover it is required that there have been no circumstances as mentioned in section 31, paragraph 2, sub a to f, of the Aliens Act 2000, that harm the credibility of the asylum seekers statements. If this last requirement has not been met,[…] there should also be no gaps, vagueness, inexplicable turns, and inconsistencies at the level of relevant details; the asylum account has to possess a positive persuasiveness. When applying this policy in a concrete case, the minister has a margin of appreciation . He assesses the credibility of the asylum account on the basis of extended interviews and on a comparison with all he knows of the situation in the country of origin on the basis of country reports and other objective sources and the research done, and the considerations made before in connection with the interviews of other asylum seekers in a comparable situation. This overview enables him to make this assessment in a comparing and therefore objectivated way. The court is not capable to assess the credibility in a comparable way. That does not mean that the minister's considerations are not subjected to a judicial review. The standard in the assessment that has to be made is, however, not the judge's own opinion on the credibility of the asylum seekers narrative, but the question whether there is ground for the opinion that the minister, in the light of the reports of the interviews that were held, the corrections and supplements made on it and the statements made in the reaction to the intended rejection, reasonably could not have come to his opinion about the credibility of the narrative. This is irrespective of the fact that the process of decision-making should meet the demands of due process and motivation as required by law, and that the judge must assess the decision by these standards. Thus a judicial review takes place, without the court performing an assessment that has to be performed by the minister . i

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The question whether one of the circumstances mentioned in section 31, paragraph 2 under a to f, arises. ii Establishments of a factual nature (e.g the establishment that the applicant has submitted travel or identity documents, that do not refer to himself ) are subject to a full judicial review (see paragraph 2.2).

The minister's view as to which documents are deemed necessary for the assessment of the application is subject to marginal review. Also, the position of the minister on the question whether a lack of documents can be attributed to the asylum seeker is subject to a marginal review. The AJD considered on 31 October 2002, in a case in which the minister applied section 31. paragraph 2, under f, because the asylum seeker submitted a drivers licence, but failed to submit (other) travel and identity documents 2: It is argued in the intended decision, which lies at the heart of the rejection of the application, that the submission of a driving license by the alien, does not alter the fact that his failure to submit documents that substantiate the travelling account and leaving behind crucial travel and identity documents, such as a passport or a birth certificate, fall within his responsibility. It follows from the opening words of section 31, paragraph 2 of the Aliens Act 2000 that this circumstance should be taken into account at the investigation of the application for a residence permit. Furthermore it is […] primarily the responsibility of the minister to decide whether and to what extent the facts stated by the applicant in his account, but otherwise not substantiated, will be taken into account. The decision which documents are necessary for the assessment of the application and which of these could have and should have been submitted to substantiate the application, is part of the before mentioned assessment. There is no ground for the opinion that the minister in reasonableness could not have had the opinion that the alien through his own fault or negligence has not submitted travelling or identity documents that are necessary for the assessment of the application. iii 2

AJD 31 October 2002, nr. 200204638/1

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In a case of an applicant from Somalia, who did not submit any identity or travel documents to support her asylum claim, the court considered that the fact that the asylum seeker did not have any identity documents could not be attributed to her. The court took into account the fact that Somalia does not have a central government and that asylum seekers have to set out on a dangerous journey to reach the border. However, according to the court, the lack of documents to support her travel account could be attributed to the asylum seeker. The minister was of the opinion that the lack of documents could be attributed to the asylum seeker because it was not made plausible that those documents did not exist in Somalia. The AJD considered 3: The court wrongly failed to take into account the argument laid down in the decision, that and why the asylum seeker did not make plausible that the lack of travel documents could not be attributed to her, and that she therefore harmed the willingness that exists in principle to consider her asylum account to be credible, insofar as she could in reasonableness not be expected to substantiate her account. There is no ground for the judgement that the State Secretary 4 could not in reasonableness take this position. iv If section 31, paragraph 2 under a to f, is judged to be applied in reasonableness by the minister, the judgment on the credibility of the asylum account is subject to an extra marginal review by the court and the AJD In many cases one of the circumstances mentioned in section 31, paragraph 2, under a to f, of the Aliens Act 2000 is applicable. Especially section 31, paragraph 2, sub under f, is applied regularly: the asylum seeker has not submitted all the travel or identity documents or other documents necessary for the assessment of the asylum application and this can be attributed to him. As we said above this decision is subject to a marginal review. If any of the circumstances mentioned in section 31, paragraph 2, sub a to f, of the Aliens Act 2000 applies, this has far reaching consequences for the way the minister is obliged to substantiate the view that the asylum account is not credible, and for the scope of judicial review. In these cases, the minister is only obliged to consider the asylum account to be credible if it contains no gaps, vagueness, inexplicable turns, or inconsistencies at the level of relevant details; the asylum account has to have what is called a ‘positive persuasiveness’. There is thus a higher standard of proof for the applicant, whereas the minister needs less arguments to deem the asylum account not credible than in the situation that none of the circumstances mentioned in section 31, paragraph 2, sub a to f, of the Aliens Act 2000 arises. This also means that the credibility of the asylum account in these cases is subject to an extra marginal review by the court and the AJD. 2.2 Full judicial review According to the AJD's doctrine, the following elements deserve full judicial review: •

Findings of a factual nature.

The establishment of facts (which can be verified) should, according to the AJD, be subjected to a full judicial review. At first sight this seems to be surprising. However, in practice this full judicial review only applies to a very limited number of cases due to the fact that asylum cases rely for the most part on the asylum seekers' own account, rather than on hard evidence. An example of the case law of the AJD on this point is a case in which the State Secretary argued that the asylum seeker had travelled with an authentic passport which was issued on another name than the name on the identity card of Sierra Leone, which was submitted by the asylum seeker. The Secretary of State therefore found that the asylum seeker submitted an identity card which did not refer to himself. The AJD considered 5: The establishment that the applicant has submitted travel or identity documents, that do not refer to himself, as mentioned in section 31, paragraph two under e of the Aliens Act 2000 is of a factual nature. The court can, without restraint consider AJD 30 July 2002, nr. 200203043/1 Until April 2002, the Secretary of State for the Justice Department was responsible for decisions on asylum requests and for asylum policy. After this date, this task was shifted to the newly created Minister of Aliens Affairs and Integration. 5 AJD, 17 September 2003, nr. 200304769/1. 3

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the question whether this establishment by the minister is right, considering the motivation set out in the intended decision and in the challenged decision [of the Dutch authorities]. v •

The interpretation of relevant criteria (i.e. the refugee definition and article 3 ECHR) based on facts which are considered plausible.

The question whether the asylum seeker qualifies as an alien who is protected by the Refugee Convention or article 3 ECHR is subject to a full judicial review. The AJD considered 6: If the minister is of the opinion, based on the facts stated and considered by him, that the applicant did not make plausible that he has a well-founded fear for persecution, or that there is a real risk of a treatment in violation of article 3 ECHR, if he were to be returned to his country of origin, the court has to decide whether the minister has rightly come to that conclusion, and in answering this question there is no room for restraint . vi 2.3 Full or marginal review? The AJD has not produced (consistent) jurisprudence on all aspects of the scope of the judicial review the Dutch courts should apply in asylum. The AJD's doctrine is vague as to how the following elements should be reviewed by the courts: •

The minister's opinion on the credibility of parts of the asylum account which are substantiated or of an asylum account which is completely substantiated. It is not clear whether the minister's opinion on the credibility of parts of the asylum account which are substantiated or of an asylum account which is completely substantiated, should be subjected to a marginal review. There is no jurisprudence on this point.

•

The question whether, in the light of the facts considered credible, there is a well founded fear for persecution or a real risk of violation of article 3 ECHR. The jurisprudence on this point is not entirely clear.

The AJD has in practice applied (and prescribed) marginal scrutiny concerning the following questions (see the endnotes for a description of the cases): - Does the applicant run a real risk to become a victim of a treatment in violation of article 3 ECHR, if she returns to (the Northern part) of Iraq? vii - Did the applicant make plausible that the discrimination he was subjected to, was so serious that his life had become untenable? viii - Could the minister reasonably take the position: * that the facts stated by the applicants were an insufficient basis for their suspicion that the illtreatment was committed by members of the security forces and * that they did not substantiate that there are concrete reasons, in their personal facts and circumstances, that justify the conclusion that they run a real risk in the sense of article 3 ECHR if they were to be returned. ix - Did the applicant make plausible that he has a well- founded fear for persecution because of the grounds set down in the Refugee Convention? x - Did the applicant make plausible that , if he were to be expelled, he would run a real risk in the sense of article 3 ECHR to be subjected to torture or other inhuman treatment. xi On the other hand, the AJD considered that the minister's consideration that the applicant had not made a plausible case that he was singled out by the authorities, should be subjected to a full judicial review. The AJD considered that this consideration relates to the question whether the established facts justify the conclusion that the applicant has well founded fear for persecution and therefore to the meaning that has to be contributed to these facts. xii

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AJD, 15 November 2002, nr. 200205522/1

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2.4 Conclusion The establishment of facts and the minister's assessment of the credibility of the asylum account are reviewed marginally by the court. Also the question whether one of the circumstances mentioned in section 31, paragraph 2, sub a to f, of the Aliens Act 2000 arises, is reviewed marginally. The most frequently encountered circumstance mentioned in this section is the fact that the asylum seeker has not submitted all the travel or identity documents or other documents necessary for the assessment of the asylum application and this can be attributed to him. If any of the circumstances mentioned in section 31, paragraph 2, sub a to f, of the Aliens Act 2000 applies, the result is that the credibility of the asylum account is subject to an extra marginal review by the court and the AJD. Only the establishment of facts that can be verified and the interpretation of the refugee definition or article 3 ECHR are always subjected to a full review. In a substantial number of cases, the AJD reviews marginally whether, in the light of the facts considered credible, there is a well founded fear for persecution or a real risk of violation of article 3 ECHR.. For example the decision of the minister on the question whether the suspicions, expectations or conclusions of/made by the applicant based on the facts established, are made plausible, is reviewed marginally. It can be concluded that the most important part of the judgement whether there is a real risk of a violation of article 3 ECHR is reviewed marginally. The fact that the core part of the ministers decision on an asylum request is subjected to a marginal scrutiny, leaves a wide margin of appreciation to the minister. In practice, in many asylum cases the minister considers that the applicant has not submitted sufficient travel and/or identity documents and that this can be attributed to him. Many asylum requests are rejected because the minister deems the asylum account not credible. Because of the jurisprudence of the AJD, it has become increasingly difficult to challenge the decision of the minister on the lack of documentation and the credibility of the asylum account in court. This raises serious doubts as to whether the current judicial review in asylum cases in the Netherlands can be regarded as an effective remedy the sense of article 13 of the ECHR. This issue will be discussed in the next paragraph. 3. Marginal scrutiny and articles 3 and 13 ECHR We will argue that the AJD's doctrine that limits judicial review of facts in asylum cases, is at odds with the requirements of Articles 3 and 13 of the ECHR. The Court has considered the following with regard to the effective remedy in the sense of Article 13 ECHR: In the Court's opinion, given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialized and the importance which it attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. xiii The AJD has itself ruled on the question whether the limited judicial review of facts in asylum cases, is at odds with the requirements of articles 3 and 13 of the ECHR in a judgment of 11 December 2003. The AJD considered 7: In the judgments against the United Kingdom of 2 May 1997, in the case of D, of 7 March 2000, in the case of T.I., of 6 February 2001, in the case of Bensaid, and of 6 March 2001, in the case of Hilal, the issue was raised whether an effective remedy is offered, if the domestic courts in case of an alleged violation of Article 13, do not form their own opinion as to the credibility of the facts put forward by the asylum seeker, but limit themselves to a test of the administration's assessment of that credibility. The ECHR ruled in that context that, succinctly put, a remedy is effective if the alleged violation of Article 3 can be brought before a court, that can quash the decision on the grounds that the decision could not, all circumstances considered, be taken in all reasonableness. The fact that that test is applied with criteria used to assess the legality or legitimacy of administrative decisions, is not enough to consider this test to be not an effective one. In the light of this jurisprudence, there are no grounds for considering the restrained scrutiny by the court (...) is at odds with Article 13 read in conjunction with Article 3. xiv

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AJD, 11 December 2003, nr. 200305004/1

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In other words, the AJD does not consider its own model of marginal scrutiny to be at odds with Article 13, because it argues that the ECHR has, in several cases against the UK, ruled, that a standard of judicial review described as ‘marginal’, is in accordance with Article 13. But, as several commentators have put forward (see below, under comments), although the wording of the standard of British judicial scrutiny seems to indicate a very marginal scrutiny, the way the British Courts actually perform this task (judging from the ‘Hilal’ xv en ‘Bensaid’ xvi cases) does not in any way point to restraint on their part. In its judgments in the cases ‘Hilal’ (par. 37) and 'Bensaid' (par. 28) the European Court cites the description of the ‘illegality review’ by the British asylum courts as follows: The domestic court's obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State's decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State […] In circumstances such as these, what has been called the discretionary area of judgment – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal is decidedly a narrow one. [Emphasis added]. It seems that thís type of scrutiny is in accordance with the standard of effectiveness as required by Article 13 – de facto full scrutiny, although the British themselves have labelled it ‘marginal’. Another strong argument why marginal scrutiny is at odds with Article 13, can be found in the rigorous scrutiny the Court itself usually performs in asylum cases. The case Nasimi v. Sweden xvii illustrates the judicial review of the Court when it comes to the assessment of the credibility. If one reads the considerations, it seems that the Court assesses the facts and the credibility itself. As Battjes (see below) has argued: It follows from the judgment in the case of ‘Mamatkulov’ xviii that the safeguards as warranted by the procedure before the Court stem from the notion of the effective exercise of the of the right of individual application (effectiveness principle). (Mamatkulov, par. 96) In my opinion the full [careful] scrutiny that the Court usually performs in asylum cases ensues from that same principle. I think that the obligations that stem from the effectiveness principle for the procedure before the Court, are fully applicable on the domestic level. Finally, if the Court would allow the domestic courts to perform a type of scrutiny that is less rigorous than the scrutiny it performs itself, the domestic courts would no longer carry out their necessary filter role and the European Court would, in practice and against all intentions, perform the role of a court of appeal. 4. Comments In this paragraph we will give an overview of the criticism in the past few years of the NGO's and academics against the marginal scrutiny in asylum cases. These comments will be followed by a conclusion. 4.1

Non governmental orgnizations

UNHCR UNHCR expressed its concerns about the Dutch asylum procedures in July 2003 in its note "Implementation of the Aliens Act 2000: UNHCR's Observations and Recommendations." In this note UNHCR points out the areas of concern and provides recommendations with regard to: 1) the accelerated procedure as it is legally defined and implemented; 2) the burden of proof imposed on asylum-seekers; 3) the understanding of new facts leading to limitations in the scope of judicial review and in subsequent applications; 4) further limitations in the context of judicial review. With regard to the fourth subject the UNHCR wrote: The Council of State has further restricted the scope of review by District Courts, by generally limiting any review of the findings and assessment of the facts by the Minister of Justice to an assessment of whether the minister could reasonably have come to his decision. Even where a different conclusion could be argued, in so far as the point of view of the minister is reasonable, the Courts must accept the minister’s decision. While District Courts are competent to issue decisions on eligibility, they must proceed on the basis of facts as found and assessed by the minister in so far as his assessment is considered reasonable. 6

In UNHCR’s view, asylum-seekers should have the possibility for at least one appeal with full examination of both facts and points of law. The far-reaching limitations with regard to the review of the facts and their assessment by the minister, particularly when considered in conjunction with the concerns raised in earlier sections, do not operate in favour of the asylum-seeker and raise serious questions regarding the effectiveness of the available remedies. UNHCR recommends that: (…) measures be taken to ensure a full review of questions of both facts and law in the case of appeals in asylum cases. Human Rights Watch In its report "Fleeting refuge, the triumph of efficiency over protection in Dutch asylum policy" of April 2003 Human Rights Watch wrote 8: In addition to the jurisprudence discussed above, the Raad van State held in November 2002 that the review of cases rejected in the AC procedure should be limited and courts should assess only the “reasonableness” of the IND’s decision, especially with regard to the assessment of an applicant’s credibility, rather than examining the merits of the case. This decision may have the effect of limiting further the judicial check on IND's decisions about which cases are admitted to the full asylum determination procedure. Human Rights Watch is concerned that asylum seekers are being denied a meaningful review of their asylum decisions due to the constraints placed upon judicial review in the Netherlands. Where individuals are returned to their countries of origin in violation of the non-refoulement provision of the Refugee Convention or article 3 of the ECHR, the denial of an effective remedy for a violation of human rights might also violate article 13 of the ECHR. A genuine opportunity to appeal implies more than a perfunctory examination of the law and a hands-off approach on assessment of credibility and review of the merits. Human Rights Watch recommends that the government of the Netherlands take urgent steps to ensure that every asylum seeker is provided an adequate opportunity to present their claim for asylum, and that judicial review ensures that the merits of the case have been fairly examined. Advisory Board on Aliens Affairs The Advisory Board on Migration Issues (ACVZ) is an independent commission that advises the minister of Justice and Parliament either upon request or of its own motion about migration law, migration policy and in selected individual cases (Section 2 Aliens Act 2000). The ACVZ wrote in February 2004 9: If so desired by the applicant, it should be possible to have the final decision reviewed by a judge, in a way that it is not just a reserved review of the rules of the game. Without sitting down on the chair of the authorities who have to take the decision, the judge should express his judgement at his decision, whether the contents of the decision meet the protection obligations set by treaties and the law, which the Netherlands have towards refugees and other aliens worthy of protection. The judge is, as the AJD rightly states, not equipped and not in the position to take the decision on the claim for residence completely on his own. However this does not mean that the system of the Aliens Act 2000 requires a (practically full) marginal scrutiny. xix It needs to be stressed again, that an incorrect rejection can have dramatic consequences, because the wrongly rejected refugee could be returned to a situation where he fears persecution, inhuman treatment or even death. Such a decision thus has much more serious consequences than most of the other administrative decisions in the Netherlands. It is therefore problematic that the Aliens Act 2000 is at the moment interpreted by the (highest) court in alien cases, in a way which requires the courts , even in considering asylum requests, to limit itself entirely to a marginal type of scrutiny – as is usual in considering other administrative decisions. xx The Dutch section of the International Commission of Jurists (NJCM) In November 2003 the NJCM wrote a report on the accelerated procedure. In this report the NJCM also mentions its criticism on the marginal scrutiny. 10 The NJCM is of the opinion that because of the marginal scrutiny, the possibilities to repair mistakes, made during the ACprocedure 11 are too limited. This marginal scrutiny in asylum cases is at odds with article 3 ECHR. Moreover the marginal http://www.hrw.org/reports/2003/netherlands0403/ (May 2005) Adviescommissie voor Vreemdelingenzaken, Naar één snelle en zorgvuldige asielprocedure, februari 2004, p. 16, 19 http://www.acvz.com/publicaties/Advies-ACVZ-NR8-2004.pdf (May 2005). 10 Nederlands Juristencomité voor de Mensenrechten, De AC-procedure, de achilleshiel van het asielbeleid, een commentaar van het Nederlands Juristencomité voor de Mensenrechten op het gebruik van de versnelde procedure in de aanmeldcentra, November 2003, http://www.njcm.nl/upload/NJCM-AC-commentaar-2003.PDF (May 2005). 11 In 2004, the accelerated procedure has been used as a management instrument to reject some 40 percent of the asylum requests. This procedure has been widely criticized by academics and NGO's for not being careful enough in 8 9

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scrutiny contributes to whether the possibility to (higher) appeal against the rejection in the AC-procedure is an effective remedy in the sense of article 13 of the ECHR. The NJCM urges that the law should be amended to the effect that asylum cases should no longer be reviewed marginally. The NJCM also insists that, as long as the jurisprudence still assumes marginal scrutiny, an asylum account in the AC-procedure should not be too easily deemed to be not credible xxi. 4.2

Academics

B.K Olivier of the University of Amsterdam wrote in March 2003: 12 I think that the AJD is right when it considers that the judge is not equipped for a full review. Furthermore it is important to acknowledge that a judge should not duplicate the administrative decision making; he is a reviewer. It is already inherent in that role that the administration should be given a certain margin. The less the judge is capable to consider certain aspects of the establishment of the issue by the administration, the more reserved the review conducted by the judge should be. On the other hand, it is all the more important in the cases mentioned last, that the judge reviews whether the decision-making of the administration meets the requirements of due process and transparency of argumentation. Especially on these points, the AJD would be expected to reconsider its consistent jurisprudence . After all, the AJD has given the administration a very large margin of appreciation and discretion on the points of due process and transparency. For instance, the AJD puts (too) much emphasis on the obligation of the applicant to make plausible that he should be granted asylum; the AJD assumes (far too) easily that the applicant can be held responsible for not having travel- and identity documents; the AJD leaves the administration ample opportunity to reject an asylum application within 48 hours; the AJD fails to acknowledge that country reports of the Ministry of Foreign affairs are drafted with a political agenda; the AJD disregards information from other sources too easily when the applicant submits that information. The AJD confines itself to a marginal scrutiny with regard to the credibility of the asylum account. In principle the AJD does not award the asylum seeker a second chance by not considering facts and circumstances that could have been brought up earlier, new facts and circumstances; Apart from that the AJD interprets section 4:6 GALA rigidly too, in the sense that it does not take into account how the first application was processed. With' mission statements’ like these, the AJD should not be surprised that its position has been subjected to fierce scrutiny. xxii T.P. Spijkerboer and B.P.V. Vermeulen of the Vrije Universiteit van Amsterdam wrote in May 2005: In their book ‘Vluchtelingenrecht’ (Refugee Law), Spijkerboer and Vermeulen pay attention to the jurisprudence of the AJD on the marginal scrutiny in asylum cases. They write 13: At the moment, in the Dutch situation, there is a marginal judicial review with regard to the judgement on the credibility made by the minister. Besides this, also the question whether there is special attention for the applicant is reviewed marginally. The European Court of Human Rights has found that the British asylum procedure in which a substantially more intense judicial review is conducted , does not violate article 13 ECHR. The Court pays much attention in its decisions to the fact that, although the British standard of review suggests a marginal review/scrutiny, in fact a thorough and detailed review takes place. This suggests - and this is the second conclusion - that such a review is deemed necessary by the court. Thirdly: if we regard the way in which the court itself applies the required rigorous scrutiny, it might be concluded that the Dutch judicial review defers in such a degree that it can not be regarded as a rigorous scrutiny that meets the requirements of article 13 ECHR. xxiii H. Battjes of the Vrije Universiteit van Amsterdam wrote in 2004: 14 Although the [European] Court's considerations are not as clear as one might have wished, I tend to agree with Spijkerboer's analysis, that Article 13 as interpreted by the Court presupposes full [judicial] scrutiny of the determination of facts or the credibility (contrary to what I wrote earlier (...)). There are five reasons why I think this is the case: 1. The first argument for full scrutiny is the more general requirement that the domestic court should [in cases involving Article 3] perform a ‘rigorous scrutiny’ (...) – marginal judicial scrutiny seems to be at odds with that requirement. assessing asylum applications. Academic research shows that asylum seekers lack sufficient opportunity in this procedure to explain their case. Lawyers have only five hours in this procedure and complain about their lack of sufficient time to deal with the asylum seekers. Lawyers, the ACVZ, VluchtelingenWerk Nederland, and the NJCM have urged for more time in this procedure, but their demands have been neglected by the minister of Aliens Affairs and Integration. Due to these procedural flaws, marginal judicial review can be fatal for serious asylum applications. See also annex 1. 12 Annotation to judgment Administrative Jurisdiction Division of the Council of State,27 January 2003, JV 2003/103. 13 T.P. Spijkerboer and B.P.V. Vermeulen, Vluchtelingenrecht, Ars Aequi Libri , Nijmegen 2005, p. 296 14 Annotation to judgment of the Administrative Jurisdiction Division of the Council of State, 11 December 2003, RV 2003, 17.

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2. Secondly, an obligation to perform a full scrutiny can be deduced from the standard consideration quoted above, that the British domestic courts assess whether ‘a reasonable Secretary of State could take this decision’. 3. Thirdly, it is important to acknowledge that the wording of the standard of [British] judicial scrutiny seems to indicate a very marginal scrutiny, but that the way the British Courts actually perform this task (judging from the ‘Hilal’ en ‘Bensaid’ cases 15) does not in any way point to restraints on their part. In its judgments in the cases ‘Hilal’ (par. 37) and Bensaid (par. 28) the Court cites the description of the ‘illegality review’ by the British asylum courts as follows: ‘The domestic court's obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State's decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State […] In circumstances such as these, what has been called the discretionary area of judgment – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal is decidedly a narrow one [emphasis added by the author, HBA]. I think that thís type of scrutiny is in accordance with the standard of effectiveness as required by Article 13 – de facto full scrutiny, although the British themselves have labelled it ‘marginal’. 4. A fourth argument can be found in the full [rigorous] scrutiny the Court itself usually performs in asylum cases. It follows from the judgment in the case of ‘Mamatkulov’ that the safeguards as warranted by the procedure before the Court stem from the notion of the effective exercise of the of the right of individual application (effectiveness principle). (Mamatkulov, par. 96) In my opinion the full [careful] scrutiny that the Court usually performs in asylum cases ensues from that same principle. I think that the obligations that stem from the effectiveness principle for the procedure before the Court, are fully applicable on the domestic level. 5. This ties in with the fifth and final argument in favour of the position that Article 13 requires full judicial scrutiny. If the Court would allow the domestic courts to perform a type of scrutiny that is less rigorous than the scrutiny it performs itself, the domestic courts would no longer carry out their necessary filter role and the European Court would, in practice and against all intentions, perform the role of a court of appeal. xxiv S. Essakkili of the Vrije Universiteit van Amsterdam wrote in May 2005 In a lot of cases the decision whether the asylum seeker qualifies for refugee status or for protection on the basis of article 3 of the Convention depends on whether he has drawn the negative attention of the authority/ whether the discrimination was that serious . The answer to these questions actually decides whether the asylum seeker will be provided protection. If the narrative has been found credible, it is a matter of assessing whether the circumstances fall within the definition of “negative attention of the authorities” or “serious discrimination” .The assessment of whether the credible statements of the asylum seeker fall within the definition of “negative attention of the authorities” or “serious discrimination” must be seen as part of the qualification of facts. As illustrated before the qualification of facts must be reviewed fully. In this way, one of the most important questions that must be answered to determine whether the asylum seeker faces a real risk of treatment contrary to article 3 of the ECHR is not subject to rigorous, or full, scrutiny". 16 The only aspects that are always fully reviewed are factual determinations and the interpretation of international norms. Therefore, the review by Dutch courts is almost entirely a marginal one. In those cases in which the lack of proper documentation is attributable to the asylum seeker, the judicial review applied is even more marginal. Thus, it is very hard for asylum seekers to challenge the minister’s decision on credibility and the lack of proper documentation. If both the credibility assessment and the plausibility of the stated fear or risk are subjected to marginal judicial review, then there is no rigorous scrutiny." 17 4.3 Conclusion All the NGO's and academics mentioned above have criticized the doctrine of marginal scrutiny in asylum cases. UNHCR and Human Rights Watch recommend that the courts review both facts and points of law in at least one instance. The ACVZ and Olivier point out that the court is not equipped, nor in the position to apply a full review on the decision of the minister. The court should not make its own decision on the asylum request. However the ACVZ thinks that the Aliens Act 2000 does not require a judicial review as marginal as it is now. According to Olivier the real problem is that the AJD leaves the minister too much discretion, for example in deciding whether the asylum application can be rejected in the accelerated (48 hour) procedure, or in rejecting a subsequent application because the applicant did not submit any new facts or circumstances. The NJCM argues that the marginal scrutiny is especially problematic in case of applications rejected during the accelerated procedure.

See endnotes xv and xvi S. Essakkili, Marginal judicial review in the Dutch asylum procedure, Masters thesis VU, Amsterdam 2005, p. 59. 17 S. Essakkili, Marginal judicial review in the Dutch asylum procedure, Masters thesis VU, Amsterdam 2005, p. 62. 15

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Spijkerboer and Vermeulen and Battjes hold that article 13 ECHR as interpreted by the European Court of Human Rights, requires a full judicial scrutiny of the determination of the facts or the credibility. Therefore the marginal scrutiny in asylum cases in the Netherlands does not meet the requirements of article 13 of the ECHR. Also UNHCR considers that the far-reaching limitations with regard to the review of the facts and their assessment by the minister, raise serious questions regarding the effectiveness of the available remedies. 5. Conclusion According to the Court an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. We argue that the judicial review in asylum cases in the Netherlands does not imply a rigorous scrutiny. The AJD's doctrine that limits judicial review of facts in asylum cases, is therefore at odds with the requirements of articles 3 and 13 of the ECHR. Our arguments can be summarized as follows: In the Netherlands, administrative review has been abolished with the introduction of the Aliens Act 2000. The core part of the judgement whether there is a real risk of a violation of article 3 ECHR is subject to a marginal scrutiny: • The minister's opinion on the credibility of the asylum account. • The question whether one of the circumstances mentioned in section 31, paragraph 2 under a to f, arises. This also implies that: - The position of the minister which documents are necessary for the assessment of the application is subject to marginal review. - The position of the minister on the question whether a lack of documents can be attributed to the asylum seeker is subject to a marginal review. If one of the circumstances mentioned in section 31, paragraph 2 under a to f, arises, this also means that the credibility of the asylum account is subject to an extra marginal review by the court and the AJD. • The decision of the minister on the question whether the suspicions, expectations or conclusions of/made by the applicant based on the facts established, are made plausible. The question whether the authorities have special attention for the applicant. Although the Court has ruled in several cases against the UK, that a standard of judicial review described as ‘marginal’, is in accordance with Article 13, several commentators have put forward that, although the wording of the standard of British judicial scrutiny seems to indicate a very marginal scrutiny, the way the British courts actually perform this task does not in any way point to restraint on their part. Therefore these rulings do not imply that the judicial review applied by the Dutch courts and the AJD, which is also in practice a very marginal scrutiny, is ipso facto in accordance with Articles 3 and 13 ECHR. Another strong argument why marginal scrutiny is at odds with Article 13, can be found in the rigorous scrutiny the Court itself usually performs in asylum cases. We refer to the judgment of the Court in the case Nasimi v. Sweden. 18 Finally, if the Court would allow the domestic courts to perform a type of scrutiny that is less rigorous than the scrutiny it performs itself, the domestic courts would no longer carry out their necessary filter role and the European Court would, in practice and against all intentions, perform the role of a court of appeal

18

ECHR, 16 March 2004, application no. 38865/02 (Nasimi v. Sweden)

10

Endnotes In het bestuursrechtelijk bestel, waarvan het vreemdelingenrecht deel uitmaakt, voert het bestuur, in dit geval de minister, de wet uit en is het de taak van de rechter de daartoe door de minister genomen besluiten, indien daartegen beroep is ingesteld, op rechtmatigheid te toetsen aan de hand van de voorgedragen beroepsgronden en ambtshalve aan voorschriften van openbare orde. Daarnaast is de minister voor de uitvoeringspraktijk ten volle verantwoording verschuldigd aan de Staten-Generaal. Bij de beoordeling door de minister van het asielrelaas gaat het meestal niet om de vraag, of en in hoeverre de verklaringen over de feiten die de asielzoeker aan zijn aanvraag ten grondslag heeft gelegd als vaststaand moeten worden aangenomen. De asielzoeker is immers veelal niet in staat en van hem kan ook redelijkerwijs niet worden gevergd zijn relaas overtuigend met bewijsmateriaal te staven. Om de asielzoeker, waar dat probleem zich voordoet, tegemoet te komen en toch een adequate beoordeling van de aanvraag in het licht van de toepasselijke wettelijke voorschriften te kunnen verrichten, pleegt de minister blijkens het gestelde in paragraaf Cl/1 sub 2 en paragraaf C1/3 sub 2.2. en 3.4 van de Vreemdelingencirculaire 2000 het relaas en de daarin gestelde feiten voor waar aan te nemen, indien de asielzoeker alle hem gestelde vragen zo volledig mogelijk heeft beantwoord en het relaas op hoofdlijnen innerlijk consistent en niet-onaannemelijk is en strookt met wat over de algemene situatie in het land van herkomst bekend is. Bovendien geldt daarvoor als vereiste dat zich geen van de in artikel 31, tweede lid, onder a tot en met f, van de Vw 2000 opgesomde omstandigheden die afbreuk doen aan de geloofwaardigheid van de verklaringen van de asielzoeker voordoet. Wordt aan dat laatste vereiste niet voldaan, dan mogen[….] in het relaas ook geen hiaten, vaagheden, ongerijmde wendingen en tegenstrijdigheden op het niveau van de relevante bijzonderheden voorkomen; van het asielrelaas moet dan een positieve overtuigingskracht uitgaan. Bij de toepassing van dit beleid in een concreet geval komt de minister beoordelingsruimte toe. Hij beoordeelt de geloofwaardigheid van het asielrelaas op basis van uitvoerige gehoren en van vergelijking van het relaas met al datgene, wat hij over de situatie in het land van herkomst weet uit ambtsberichten en andere objectieve bronnen en wat hij eerder heeft onderzocht en overwogen naar aanleiding van de gehoren van andere asielzoekers in een vergelijkbare situatie. Dit overzicht stelt hem in staat die beoordeling vergelijkenderwijs en aldus geobjectiveerd te verrichten. De rechter is niet in staat de geloofwaardigheid op vergelijkbare wijze te beoordelen. Dat betekent niet dat geen toetsing in rechte plaatsvindt van de beoordeling door de minister. De maatstaf bij de te verrichten toetsing is evenwel niet het eigen oordeel van de rechter over de geloofwaardigheid van het relaas, maar de vraag of grond bestaat voor het oordeel dat de minister, gelet op de motivering, neergelegd in het voornemen en het bestreden besluit, bezien in het licht van de verslagen van de gehouden gehoren, de daarop aangebrachte correcties en aanvullingen en het gestelde in de zienswijze, niet in redelijkheid tot zijn oordeel over de geloofwaardigheid van het relaas kon komen. i

Section 31 of the Aliens Act 2000 states: 1. An application for the issue of a residence permit for a fixed period as referred to in section 28 shall be rejected if the alien has not made a plausible case that his application is based on circumstances which, either in themselves or in connection with other facts, constitute a legal ground for the issue of the permit. 2. The screening of an application shall take account, among other things, of the fact that: (a) the alien has previously submitted an application for a residence permit in the Netherlands under another name; (b) the alien has failed to comply with the directions referred to in section 55, without having a valid reason; (c) the alien does not have a travel document required for entry into the Netherlands, unless he has immediately reported to a border control officer or an aliens supervision officer, stating the place where or near which he entered the Netherlands, and has indicated to such officer that he wishes to have asylum; (d) the alien has produced a false or forged travel document, identity card or other papers and, despite being questioned about this, has deliberately asserted that they are genuine; (e) in support of his application the alien has deliberately produced a travel document, identity card or other papers that do not relate to him; (f) in support of his application the alien is unable to produce a travel document, identity card or other papers necessary for assessment of his application, unless the alien can make a plausible case that he is not to blame for their absence; [….]

ii

In de aan de afwijzing van de aanvraag ten grondslag liggende kennisgeving van het voornemen daartoe is gemotiveerd uiteengezet dat het overleggen van een rijbewijs door de vreemdeling onverlet laat dat het niet overleggen van documenten die zijn reisverhaal ondersteunen en het achterlaten van cruciale reis- en identiteitspapieren als een paspoort en een geboorteakte iii

1

aan hem is toe te rekenen. Uit de aanhef van artikel 31, tweede lid, van de Vw 2000 volgt dat deze omstandigheid bij het onderzoek naar de aanvraag om een verblijfsvergunning dient te worden betrokken. Voorts is [….] het primair de verantwoordelijkheid van de minister te bepalen of en in hoeverre bij de beslissing op de aanvraag wordt 5 uitgegaan van de door de vreemdeling in zijn asielrelaas gestelde, doch niet gestaafde feiten. De beslissing welke documenten noodzakelijk zijn voor de beoordeling van de aanvraag en ter onderbouwing daarvan hadden kunnen en moeten worden overgelegd, maakt deel uit van die beoordeling. Er is geen grond voor het oordeel dat de staatssecretaris zich niet in redelijkheid op het standpunt heeft kunnen stellen dat de vreemdeling verwijtbaar geen reis- of identiteitspapieren dan wel andere bescheiden heeft overgelegd die noodzakelijk zijn voor de beoordeling van de aanvraag. De voorzieningenrechter is ten onrechte voorbij gegaan aan het betoog in het besluit dat en waarom de vreemdeling niet aannemelijk heeft gemaakt dat het ontbreken van reisdocumenten haar niet had mogen worden tegengeworpen en zij aldus afbreuk heeft gedaan aan de in beginsel aanwezige bereidheid om haar relaas voor waar te houden, in zoverre in redelijkheid geen onderbouwing kan worden gevraagd. Er is geen grond voor het oordeel dat de staatssecretaris zich niet in redelijkheid op dit standpunt heeft kunnen stellen.

iv

v De vaststelling dat de vreemdeling reis- of identiteitspapieren, dan wel andere bescheiden heeft overgelegd die niet op hem betrekking hebben, als bedoeld in artikel 31, tweede lid, aanhef en onder e, van de Vw 2000, is van feitelijke aard. De rechter kan zonder terughoudendheid treden in de vraag of die vaststelling van de staatssecretaris, gelet op de motivering, neergelegd in het voornemen en het bestreden besluit, juist is.

Indien de minister zich, uitgaande van de gestelde en door hem beoordeelde feiten, op het standpunt stelt dat de vreemdeling niet aannemelijk heeft gemaakt dat hij gegronde reden heeft te vrezen voor vervolging dan wel bij terugkeer een reëel risico loopt op een behandeling in strijd met artikel 3 van het Verdrag tot bescherming van de rechten van de mens en de fundamentele vrijheden, staat voor de rechter ter beoordeling of de minister terecht tot dat standpunt is gekomen, bij de beantwoording van welke vraag voor terughoudendheid (…) geen plaats is. vi

vii AJD 21 May 2002, nr. 200201514/1. The applicant argued that she would become a victim of treatment in violation of article 3 ECHR if she and her child would settle in Northern Iraq. She stated that she had become pregnant due to rape and she would have to take care of her young child being an unmarried mother of Arabic origin if she were to be returned. She also stated that she had no bonds in Northern Iraq. She therefore argued that the court could not consider that the minister was allowed to decide that she had a flight alternative in Northern Iraq. According to the applicant, the country report on Northern Iraq was insufficient to reach this conclusion, because this report contains insufficient information on the position of unmarried or single mothers. The AJD considered that the court decided on good grounds, that the Secretary of State, based on the information from the country reports, did not have to deem plausible that the applicant would run a real risk to become a victim of a treatment in violation with article 3 ECHR if she were to be returned to Northern Iraq. viii AJD 20 August 2002, nr. 200204163/1. The AJD considered that the court had judged rightly that discrimination will only amount to persecution in the sense of the Refugee Convention if it is of such a nature and scope that the life of the person involved has become untenable. Furthermore, the court rightly did not find any ground for the judgement that the Secretary of State could not in reasonableness take the position that the applicant did not make plausible that the discrimination experienced by him was that serious.

AJD 8 October 2003, nr. 200304077/1. In this case a man of Armenian origin stated that he was illtreated in the street, smoking a cigarette. He suspected that this incident proved that he had attracted negative attention from the Syrian authorities. The Secretary of State was of the opinion that the illtreatment of the applicant was a random action, of a few fanatic men, and did not follow the applicant in his suspicion. The Secretary of State took into account that the applicant stated that the people who illtreated him were fanatics and that Christians in Syria are not ill-treated because of their religion. According to information in the country report on Syria, Armenians in Syria are free to practice their religion. ix

2

The court considered that the applicant made plausible that he was ill-treated by members of the security forces. According to information in the country report on Syria, members of the secret service are present everywhere in the Syrian streets. Not only important opponents of the regime can experience serious problems by the security forces. The AJD considered that, besides the consideration of the credibility of the stated facts, also the assessment of the degree of reality of the suspicions derived from these facts, belong to the primary responsibility of the minister, and should therefore be reviewed marginally. The AJD considered that the Secretary of State could , having regard to section 31, paragraph 1 of the Aliens Act 2000, in reasonableness be of the opinion that the facts stated by the applicant were insufficient basis for his suspicion that the ill-treatment was committed by members of the security forces and that he did not substantiate that there are concrete reasons, in their personal facts and circumstances, that justify the conclusion that he runs a real risk in the sense of section 29, paragraph 1, under b (which refers to article 3 ECHR) if he was to be returned. AJD 9 February 2004, nr. 200306922/1. The applicant, who comes from Somalia and belongs to the Reer Hamar clan, stated that his father was harassed and his family was threatened by members of the Habar Giidir clan, in order to obtain money. He also stated that he was harassed by young persons in the street, because they wanted money, but that this was not the reason for him to leave Somalia immediately. According to Dutch policy, a person who belongs to the Reer Hamar in Somalia already qualifies as a refugee if it is shown to a small degree that acts of persecution, which can be related to his ethnic origin were aimed a the person. The State Secretary was of the opinion that the applicant was not a refugee because he had not make plausible that he had a well founded fear for persecution because of his ethnic origin. The State Secretary has considered the incidents stated in the asylum account against the background of the general situation in Somalia, where there is question of arbitrariness, banditry and abuse of power of (sub)clans and factions. He was of the opinion that his judgement is confirmed by the fact that the neighbours of the family of the applicant, who also belong to the Reer Hamar clan, did not experience the same problems and that the applicant stayed with these neighbours during a few months after the last robbery, without experiencing any further problems. The minister argued before the AJD that the court considered wrongly that he should have examined whether there was a fight alternative for the applicant and that he, by not doing that, had applied a wrong standard. The AJD considered that there was no ground for the judgement that the State Secretary could not take the position that the applicant indeed had become the victim of banditism, but that he had not made plausible that he has a well founded fear for persecution based on the grounds mentioned in the Refugee Convention, because it does not show from the asylum account that the applicant is singled out because of his ethnic origin, or because of another ground mentioned in the Refugee Convention. x

AJD 1 September 2004, nr. 200401903/1. The applicant (S) in this case comes from Liberia and belongs to the Mandingo clan. S stated that he worked as a student car driver. In 2002 rebels came to the house of his boss and demanded the lorries, to transport stolen weapons and other things. S and his boss drove with the rebels. When the rebels asked S to go with him a second time, S refused. He tried to flee, but was stopped by a young rebel. S returned to his place of residence where the rebels told him that he would help him flee. During his flight S was arrested by government troops, who accused him of being a rebel. They threatened to execute him and took him to a prison in Monrovia. A soldier and an acquaintance of his father prevented the execution and helped him escape. According to Dutch policy, a person who belongs to the Mandingo in Liberia already qualifies for an asylum permit (based on a real risk of a treatment in violation with article 3 ECHR) if it is shown to a small degree that there is a real and personal risk to be subjected to torture or other inhuman treatment, which can be related to his ethnic origin. The minister considered the asylum story to be credible, but was of the opinion that there were no facts and circumstances related to his person, that could justify his fear for persecution and that there was no real risk of a treatment in violation of article 3 ECHR. The court considered that without further argumentation the minister could not decide that S would not await a treatment in violation with article 3 ECHR if he were to be returned to Liberia. The AJD considered that it is not up to the minister to make plausible that it is out of question that there is no risk of violation of article 3 ECHR, if the person involved is returned. The AJD considered that

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there is no ground for the judgement that the minister could not take the position that S, although he was arrested and detained, had not made plausible that he runs a real risk of a treatment in violation with article 3 ECHR if he were to be returned, because it did not show from the asylum account that he was singled out because of his ethnic origin. AJD 3 November 2003, 200305383/1. The AJD considered the following. As far as the minister argues that the court wrongly did not review marginally his position that the applicant did not make plausible that he was singled out by the authorities, the complaint fails. This position refers to the question whether or not the facts established justify the conclusion that the applicant has a well-founded fear of persecution and therefore to the meaning that has to be contributed to these facts. In answering this question there is no room for restraint by the judge. In this case the minister considered part of the applicant's account credible: The applicant has the Nepalese nationality and supplied food to the Maoists. The police was informed about his activities and visited him twice. However, the minister found that the applicant did not make plausible that an arrest warrant was issued for the applicant and that he was checked by the Nepalese authorities when he crossed the border. For that reason the minister took the position that the applicant was not singled out by the authorities, and therefore that the applicant had not made plausible that he had a well-founded fear for persecution. The AJD considered that the court wrongly did not review with restraint the argued position of the minister that the applicant did not make plausible that an arrest warrant was issued for the applicant and that he was checked by the Nepalese authorities when he crossed the border. The court made its own judgement with regard to this part of the asylum account and put it in place of the judgement of the minister. Therefore the court did not address the question whether the applicant was singled out by the facts on which the minister could reasonably base his opinion.

xii

In the case of Jabari v. Turkey (11 July 2000, nr. 40035/98), Mrs. Jabari alleged that she would be subjected to a real risk of ill treatment and death by stoning if expelled from Turkey, as she had committed adultery in Iran. Mrs. Jabari was granted refugee status by the UNHCR on the ground that she had a well-founded fear of persecution on account of membership of a particular social group, namely women who have transgressed social mores; this was in accordance with the UNHCR guidelines on gender-based persecution. Mrs. Jabari, however, was not granted a residence permit, as she failed to comply with the five-day registration requirement under the Asylum Regulation 1994. Because of that fact she was exposed to possible expulsion to Iran. Mrs. Jabari complained that she did not have an effective remedy against her threatened expulsion to Iran, as the Ankara Administrative Court confined itself to the issue of the formal legality of the applicant’s deportation rather than the more compelling question of the substance of her fears. The European Court of Human Rights stated in this instance: “The Court reiterates that there was no assessment made by the domestic authorities of the applicant’s claim to be at risk if removed to Iran. The refusal to consider her asylum request for non-respect of procedural requirements could not be taken on appeal. Admittedly the applicant was able to challenge the legality of her deportation in judicial review proceedings. However, this course of action neither entitled her to suspend its implementation nor to have an examination of the merits of her claim to be at risk. The Ankara Administrative Court considered that the applicant’s deportation was fully in line with domestic law requirements. It would appear that, having reached that conclusion, the court felt it unnecessary to address the substance of the applicant’s complaint, even though it was arguable on the merits in view of the UNHCR’s decision to recognize her as a refugee within the meaning of the Geneva Convention. In the Court’s opinion, given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised and the importance which it attaches to article 3, the notion of an effective remedy under article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to article 3 and the possibility of suspending the implementation of the measure impugned. Since the Ankara Administrative Court failed in the circumstances to provide any of these safeguards, the Court is led to conclude that the judicial review proceedings relied on by the Government did not satisfy the requirements of Article 13. Accordingly, there has been a violation of Article 13." xiii

In de uitspraken tegen het Verenigd Koninkrijk van 2 mei 1997 in de zaak D. (RV 1997, 70), van 7 maart 2000 in de indien zaak T.I. (RV 2001, 1), van 6 februari 2001 in de zaak Bensaid (RV 2001, 2) en van 6 maart 2001 in de zaak Hilal (RV 2001, 1) is eveneens de vraag aan de orde gesteld of sprake is van een effectief rechtsmiddel,de nationale rechter zich bij een gestelde schending van artikel 3 van het EVRM geen eigen oordeel vormt over de geloofwaardigheid van

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hetgeen door de asielzoeker aan de aanvraag ten grondslag is gelegd, maar zich beperkt tot een toetsing van de beoordeling door het bestuursorgaan daarvan. Het EHRM heeft naar aanleiding daarvan overwogen dat, zakelijk en samengevat weergegeven, een rechtsmiddel effectief is, indien de gestelde schending van artikel 3 van het EVRM bij een rechter aan de orde kan worden gesteld, die het bij hem bestreden besluit kan vernietigen op de grond dat het besluit, alle omstandigheden in aanmerking genomen, in redelijkheid niet kon worden genomen. Dat die toetsing plaatsvindt aan de hand van criteria, die worden toegepast bij de beoordeling van de legaliteit of rechtmatigheid van bestuursrechtelijke besluiten is onvoldoende om deze toetsingsmaatstaf niet effectief te achten. In het licht van deze jurisprudentie is er geen grond voor het oordeel dat de terughoudende toetsing door de rechter, zoals hiervoor onder 2.1.2. tot en met 2.1.7. uiteengezet, in strijd is met artikel 13, gelezen in samenhang met artikel 3 van het EVRM. Hoewel de rechter zich geen eigen oordeel vormt over de geloofwaardigheid van het asielrelaas, geldt dit niet voor de voorafgaande beoordeling door het bestuur daarvan, noch voor de beoordeling door de rechter of – gegeven het asielrelaas, in zoverre dat door het bestuur voor waar wordt gehouden of in redelijkheid had behoren te worden gehouden – sprake is van concrete redenen om aan te nemen dat een asielzoeker bij uitzetting een reëel risico loopt slachtoffer te worden van een met artikel 3 EVRM strijdige behandeling. Bovendien moet, zoals ook in de hiervoor onder 2.1.1. vermelde uitspraak van de Afdeling van 27 januari 2003 is overwogen, de besluitvorming door het bestuur voldoen aan de eisen van met name zorgvuldigheid en kenbaarheid van de motivering die het recht daaraan stelt en moet de rechter de besluitvorming daaraan toetsen. Daarmee wordt derhalve de gestelde schending van artikel 3 van het EVRM indringend, als hiervoor weergegeven, getoetst, nu de rechter de beoordeling door het bestuur van de geloofwaardigheid van het asielrelaas, zoals neergelegd in het voornemen daartoe en het bij hem bestreden besluit om de aanvraag af te wijzen, toetst aan de door het EHRM gehanteerde redelijkheidsmaatstaf, als vermeld in 2.2.2. en aan de eisen van zorgvuldige voorbereiding en een kenbare motivering. Indien de besluitvorming aan de aldus bij de ter toetsing te stellen eisen niet voldoet, dient de rechter dat besluit te vernietigen. Bovendien toetst de rechter ten volle of, uitgaande van het relaas in zoverre dit voor waar wordt of voor waar moet worden gehouden bij terugkeer een reëel risico op een behandeling in strijd met artikel 3 van het EVRM bestaat. Hilal v. the United Kingdom, 6 March 2001, nr. 45276/99. Mr. Hilal was an asylum seeker from Zanzibar, who claimed to be persecuted by the authorities of Tanzania. The applicant complained that article 13 ECHR was violated because the Secretary of State did not take all the evidence into account and because the British court applied a marginal review. The ECHR considered: 75. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State [….] 76. On the basis of the evidence adduced in the present case, the Court finds that the applicant’s claim that he risked inhuman and degrading treatment contrary to Article 3 of the Convention if expelled to Tanzania is “arguable” for the purposes of Article 13 [….].The Court has therefore examined whether he had available to him an effective remedy against the threatened expulsion. 77. In its Vilvarajah and Others v. the United Kingdom judgment [….] and its Soering v. the United Kingdom judgment of 7 July 1989 [….] the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court effecting judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. This view was followed in the more recent judgment of D. v. the United Kingdom [….]. 78. While the applicant argued that the courts in judicial review applications will not reach findings of fact for themselves on disputed issues, the Court is satisfied that the domestic courts give careful scrutiny to claims that an expulsion would expose an applicant to the risk of inhuman and degrading treatment. The Court is not convinced that the fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely, rationality and perverseness, deprives the procedure of its effectiveness. The substance of the applicant’s complaint was examined by the Court of Appeal, and it had the power to afford him the relief he sought. The fact that it did not do so is not a material xv

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consideration since the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for an applicant (see the Vilvarajah and Others judgment). 79. The Court concludes therefore that the applicant had available to him an effective remedy in relation to his complaints under Article 3 of the Convention concerning the risk of ill-treatment on expulsion to Tanzania. Accordingly there has been no breach of Article 13. ECHR 6 February 2001, nr. 44599/98 (Bensaid v. the United Kingdom). Mr. Bensaid suffered from schizophrenia and claimed that the would be subject to a violation of article 3 ECHR, if he were to be returned to Algeria. He also complained that he had no effective remedy available to him by which he could challenge the decision of the Secretary of State to deport him to Algeria. He argued that judicial review was limited in its scope to an examination of rationality and perverseness and could not enter into the merits. He emphasised that the courts refused to determine the essential disputes of fact between him and the Secretary of State. This inability to determine the substance of his Convention complaint deprived the procedure of effectiveness for the purposes of Article 13 of the Convention. The ECHR considered: In Vilvarajah and Others [….] and Soering v. the United Kingdom [….], the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 in the contexts of deportation and extradition. It was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment, on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take. This view was followed more recently in D. v. the United Kingdom [….]. 56. While the applicant argued that, in judicial review applications, the courts will not reach findings of fact for themselves on disputed issues, the Court is satisfied that the domestic courts give careful and detailed scrutiny to claims that an expulsion would expose an applicant to the risk of inhuman and degrading treatment. The judgment delivered by the Court of Appeal did so in the applicant's case. The Court is not convinced, therefore, that the fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely, rationality and perverseness, deprives the procedure of its effectiveness. The substance of the applicant's complaint was examined by the Court of Appeal, and it had the power to afford him the relief he sought. The fact that it did not do so is not a material consideration, since the effectiveness of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Vilvarajah and Others [….]).[….] 58. The Court concludes, therefore, that the applicant had available to him an effective remedy in relation to his complaints under Articles 3 and 8 of the Convention concerning the risk to his mental health of being expelled to Algeria. Accordingly, there has been no breach of Article 13.” xvi

ECHR, 16 March 2004, application no. 38865/02 (Nasimi v. Sweden). “.. While aware of the occurrence of reports of serious rights violations in Iran, including the persecution of people advocating rights for the Kurdish minority, the Court has to establish whether the applicant’s personal situation is such that his return to Iran would contravene Article 3 of the Convention. In this respect, it is of importance to assess the general credibility of the statements made by him before the Swedish authorities and during the present proceedings. The Court reiterates that the Swedish Migration Board conducted two interviews with the applicant and that both the Migration Board and the Aliens Appeals Board, on the basis of all the evidence before them, concluded that the applicant was not credible. They gave detailed reasons as to why they reached that conclusion. Under chapter 8, section 1 of the Aliens Act (Utlänningslagen, 1989:529), the authorities are obliged to consider essentially the same factors as are relevant the Court’s assessment under Article 3 of the Convention. In the present case, the Court, like the Swedish immigration authorities, finds it remarkable that the applicant was issued with a passport in 1996 and was allowed to leave Iran on at least two occasions, given his allegations that he was working for the Komala organization and belonged to a family of well-known political activists. The applicant claimed that the Iranian authorities did not have any evidence against him until they found the subversive journals in his home in October 2000. However he also claimed that he had been imprisoned for two years in the early 1990’s and had been tortured while imprisoned. Furthermore, he had been dismissed from his teaching job and had, after his release, been beaten up and interrogated by the authorities on several occasions. Also, his home had been searched. If these allegations were true, it appears evident that the Iranian authorities were well aware of his activities and it is not credible that they would have authorized his leaving the country. Moreover, although it recognizes that it may be an ordeal to talk about experiences of torture, the Court is struck by the fact that the applicant did not make any specific allegations of torture until December 2001, more than a

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year after he applied for asylum, although he must have been aware that such information would be of importance to the immigration authorities. Similarly, a copy of the purported revolutionary court summons was submitted to the Aliens Appeals Board in June 2002, one year eight months after its date of issuance. Notwithstanding the difficulties of obtaining a copy of such a document in Iran, the applicant has acknowledged, in his submissions to the Court, that he was aware of the existence of the summons long before he received a copy of it. In these circumstances, the Court finds it remarkable that he apparently failed to even mention the document to the immigration authorities before June 2002. It notes, moreover, that he submitted the summons at a time when he had already had two asylum applications rejected. Having regard to the above, the Court considers that there are strong reasons to call into question the veracity of his statements. He has offered no reliable evidence in support of his claims. For these reasons, the Court finds that it has not been established that there are substantial grounds for believing that the applicant faces a real risk of being subjected to treatment contrary to Article 3 of the Convention in Iran.” ECHR 6 February 2003 and 4 February 2005 (Grand Chamber), nr. 46827/99 and 46951/99 (Mamatkulov and Askarov v. Turkey). In this case two men from Uzbekistan were extradited by Turkey to their country of origin, although the ECHR had indicated to the Turkish Government, on the basis of Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and of the smooth progress of the proceedings before the Court, not to extradite the applicants to Uzbekistan prior to the meeting of the competent Chamber (interim measure). The ECHR considered in the decision of 6 February 2003 in paragraph 96:

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The Court notes that the fact that the respondent Government extradited the applicants without complying with the measures indicated under Rule 39 of the Rules of Court raises the issue whether, in view of the special nature of the alleged violation of Article 3 of the Convention, there has been a violation of Article 34. In the present case, once they had been extradited the applicants were unable to remain in contact with their representatives. The Court reiterates in that connection that it is implicit in the notion of the effective exercise of the right of individual application that for the duration of the proceedings in Strasbourg the principle of equality of arms should be observed and an applicant's right to sufficient time and necessary facilities in which to prepare his or her case respected. In the present case, the applicants' representatives were not able to contact the applicants, despite their requests to the Turkish and Uzbek authorities for permission to do so. The applicants were thus denied an opportunity to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained. The Grand Chamber concluded in its judgement of 4 February 2005, in paragraph 128: The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant’s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention. xix De uiteindelijke beslissing dient desgewenst door een rechter te kunnen worden getoetst, waarbij niet uitsluitend een terughoudende spelregeltoetsing plaatsvindt. Zonder op de stoel van het bestuur dat de beslissing moet nemen te gaan zitten, zal de rechter bij zijn beslissing zijn oordeel tot uitdrukking moeten kunnen brengen, of de inhoud van de beslissing voldoet aan de verdragsrechtelijke en wettelijke beschermingsverplichtingen, die Nederland ten aanzien van vluchtelingen en andere beschermingswaardige vreemdelingen heeft. De rechter is, zoals de Afdeling Bestuursrechtspraak van de Raad van State terecht stelt, niet geëquipeerd en niet in de positie om de beslissing omtrent de aanspraak op verblijf integraal zelf te nemen. Maar dat betekent nog niet dat het systeem van de Vw 2000 meebrengt dat een (vrijwel volledig) marginale toetsing dient te worden uitgevoerd.

xx Benadrukt dient nogmaals te worden dat een onjuiste afwijzende beslissing dramatische gevolgen kan hebben, omdat de ten onrechte afgewezen vluchteling kan worden teruggestuurd naar een situatie waar hij vervolging, onmenselijke behandeling, of zelfs de dood moet vrezen. Een dergelijke beslissing heeft dus veel ernstiger implicaties dan de meeste overige bestuursrechtelijke beslissingen in Nederland. Problematisch is dan ook dat de Vw door de (hoogste) vreemdelingenrechter thans zo wordt uitgelegd dat de rechter zich ook bij de beoordeling van asielverzoeken onverkort dient te beperken tot een (ter zake van die overige beslissingen gebruikelijke) marginale toetsing.

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Het NJCM is van oordeel dat door de marginale toetsing de mogelijkheden om bij de rechter fouten in de AC-procedure te herstellen te beperkt zijn. Deze marginale toetsing in asielzaken staat op gespannen voet met artikel 3 EVRM. Bovendien draagt de marginale toetsing ertoe bij dat de vraag nog pregnanter wordt of de mogelijkheid van (hoger) beroep tegen de afwijzing in de AC-procedure wel een effectief rechtsmiddel is in de zin van artikel 13 EVRM. Het NJCM wil erop aandringen bij wet te regelen dat in asielzaken niet meer ’marginaal’ wordt getoetst. Tevens wil het NJCM er op aandringen om, zolang de jurisprudentie nog steeds uitgaat van de marginale toetsing, een asielrelaas in de AC-procedure niet te snel ongeloofwaardig te achten. xxi

Ik denk dat de Afdeling gelijk heeft waar zij overweegt dat de rechter voor een volledige toetsing niet is toegerust. Van belang is voorts dat wordt onderkend dat een rechter de bestuurlijke besluitvorming niet over moet doen; hij is toetser. Daaraan is inherent dat aan het bestuursorgaan reeds een zekere marge toekomt. Des te minder de rechter geschikt is om bepaalde aspecten van rechtsvaststelling van het bestuursorgaan te beoordelen, des te terughoudender de toetsing van de rechter behoort te zijn. Daar staat tegenover dat in laatstbedoelde gevallen des te meer van belang is dat de rechter toetst of de besluitvorming van het bestuur wel voldoet aan de eisen van zorgvuldigheid en kenbaarheid van de motivering. Juist op die punten zou mogen worden verwacht dat de Afdeling haar jurisprudentielijn aan een heroverweging onderwerpt. Immers: op de punten van zorgvuldigheid en kenbaarheid heeft de Afdeling wel een heel grote mate van vrijheid aan het bestuur gegeven. Zo legt de Afdeling (te) veel nadruk op de verplichting van de vreemdeling dat hij aannemelijk moet maken dat hem asiel moet worden verleend; neemt de Afdeling (al te) makkelijk aan dat het de vreemdeling is toe te rekenen dat hij geen reis- en identiteitspapieren heeft; geeft de Afdeling in beginsel het bestuursorgaan alle vrijheid om een asielaanvraag binnen 48 uur af te ronden; miskent de Afdeling dat ambtsberichten worden opgesteld met een politieke agenda; geeft de Afdeling te lichtvaardig voorbij aan informatie van andere bronnen als de vreemdeling met die informatie komt, volstaat de Afdeling met betrekking tot de geloofwaardigheid van het asielrelaas met een marginale toetsing; gunt de Afdeling een asielzoeker in beginsel geen tweede kans door feiten en omstandigheden die eerder verteld hadden kunnen worden niet als nova aan te merken; en legt de Afdeling art. 4:6 Awb ook overigens rigide uit, in die zin dat zij daarbij geen rekening houdt met de wijze van afdoening van de eerste aanvraag. Met deze mission statements moet de Afdeling niet verbaasd staan dat haar positie onder vuur komt te liggen. xxii

xxiii In de Nederlandse situatie is thans sprake van een marginale rechterlijke toetsing met betrekking tot het geloofwaardigheidsoordeel van de minister. Daarnaast wordt ook de vraag of er speciale aandacht voor de vreemdeling bestaat marginaal getoetst. Het Europese Hof voor de Rechten van de Mens heeft de Britse asielprocedure, waarin een aanmerkelijk ingrijpender rechterlijke toets wordt uitgevoerd, niet in strijd met artikel 13 EVRM geacht. De eerste conclusie is dus, dat uit de rechtspraak van het Europese Hof voor de Rechten van de Mens in de Britse zaken niet voortvloeit dat de Nederlandse marginale toetsing in overeenstemming met artikel 13 EVRM is. Het Hof heeft er in zijn beslissingen veel aandacht aan besteed om vast te leggen dat, hoewel de Britse toetsingsmaatstaf een marginale toetsing suggereert, in feite een nauwgezette en gedetailleerde toetsing plaatsvindt. Daarvan gaat – en dat is de tweede conclusie – de suggestie uit dat zo een toetsing door het Hof noodzakelijk wordt geacht.Ten derde: als we bezien op welke wijze het Hof zelf vorm geeft aan de vereiste indringende toetsing, dan dringt zich de conclusie op dat de Nederlandse rechterlijke toetsing daar zodanig van verschilt, dat deze niet als een indringende toets kan worden aangemerkt die voldoet aan de eisen van artikel 13 EVRM. xxiv

Hoewel 'Hofs overwegingen alleszins aan duidelijkheid te wensen overlaten, ben ik geneigd Spijkerboer te volgen in zijn analyse dat art. 13 als uitgelegd door het Hof volle toetsing van ook de feitenvaststelling c.q. geloofwaardigheid vereist (anders dan ik stelde in mijn noten bij EHRM 9 juli 2002, RV 2002, 1 en ABRvS 15 november 2002, RV 2002, 16). Ik zie daar vijf redenen voor. Vóór volle toetsing pleit om te beginnen het algemene vereiste dat de nationale instantie een 'rigourous scrutiny' moet uitvoeren (….). - een marginale toetsing is daar niet mee te rijmen. Ten tweede valt een plicht tot volle toetsing af te leiden uit de boven aangehaalde standaardoverweging dat de nationale rechter beoordeelt of een 'redelijke minister het besluit kon nemen'. Ten derde is van belang dat de bewoording van de Engelse toetsingsmaatstaf wel lijkt te duiden op een zeer marginale toetsing, maar dat de invulling die de Engelse rechters daar blijkens Hilal en Bensaid aan geven in art. 3 EVRM-zaken bepaalde niet van rechterlijke terughoudendheid getuigt. Het Hof citeert in Hilal (r.o. 37) en Bensaid (r.o. 28) de weergave van de 'illegality review 'door de Engelse asielrechter in art. 3 zaken als volgt: 'The domestic court's obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State's decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State […] In circumstances such as these, what has been called the discretionary area of judgment – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal is decidedly a narrow one [nadruk door mij, HBA]. Ik denk dat déze invulling van de toetsing als effectief in de zin van art. 13 EVRM geldt - in feite een volle toetsing die het

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Hof zelf pleegt uit te voeren in asielzaken. Uit het arrest Mamatkulov volgt dat de waarborgen die de procedure voor het Hof vereist, voortvloeien uit het effectiviteitsbeginsel (…). Ook de volle toetsing van de afwijzing van asielzaken, zoals het Hof die wel pleegt uit te voeren (vgl Hilal) vloeit mijns inziens uit dat beginsel voort. Ik denk dat de verplichtingen die uit het effectiviteitsbeginsel voortvloeien voor de procedure voor het Hof onverkort gelden voor nationale procedures (…). Hiermee hangt samen het vijfde en laatste argument dat ervoor pleit dat art. 13 EVRM volle toetsing door de rechter vereist. Als het Hof minder vergaande toetsing door nationale instanties toelaat, hebben de laatste geen filterwerking meer en gaat het Hof fungeren als een hoger-beroeps-instantie, hetgeen niet de bedoeling zal zijn.

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