Today, the Administrative Jurisdiction Division of the Council of State (the Division) ruled that the State Secretary of Justice and Security must pay compensation to a woman (hereafter: client) who was deported by the Netherlands to Russia in 2014. Immediately after her deportation, the client was taken into custody by the Russian authorities and mistreated and raped in detention. The Division ruled that there had been a violation of the refoulement prohibition laid down in, among others, section 3 of the European Convention on Human Rights (ECHR). The Division hereby confirms the judgment of the Court of Amsterdam, which ruled on 2 October 2019 that the State Secretary had acted unlawfully towards the client. This court will now determine the amount of the compensation in an administrative-law damage assessment procedure.
The press release of the Division can be found here, the judgment here.
Further explanation of the judgment
After two rejected asylum applications, the client applied for asylum for a third time in 2014, during which she submitted a large number of new and original documents. These showed, among other things, that she would have to fear criminal prosecution in Russia. These documents were examined by the Royal Netherlands Marechaussee, which ruled that there was insufficient reference material to establish the authenticity of the documents. The client then called in a Russia expert who ruled that there was no reason to assume that the documents were not authentic. Nevertheless, her application for protection was rejected without a new substantive assessment. The Aliens Court approved this. Pending her appeal, the client was deported and handed over directly to the Russian authorities by the Royal Royal Netherlands Marechaussee from the plane. This led on the same day to the very serious consequences mentioned above, from which the client suffers to this day.
The Division ruled that the formal legal force of the State Secretary's decision did not preclude a finding of unlawfulness and liability for damages. After all, the facts show that the risk assessment was incorrect. In doing so, the Division followed the case law of the European Court of Human Rights (ECtHR), from which it follows that the events after the expulsion may be relevant for the assessment of a violation of the prohibition of refoulement (see among others X v. Switzerland; N.A. v. Finland; M.A. v. Belgium). The Division held that now that it had been established that the expulsion had resulted in a violation of section 3 of the ECHR, the risks were for the account of the State Secretary, also because the client had explicitly pointed out these risks prior to her expulsion. It follows from the case that the State Secretary always remains ultimately responsible for a deportation and its consequences, not the judiciary.
It is also relevant that this complex damage claim was brought before the administrative court and not the civil court. The State Secretary had argued that the case could not be brought before this administrative law judge, but the Division rejects this argument. According to several legislative amendments, the legislator intended that the administrative courts should have exclusive jurisdiction in aliens cases. This applies not only to unlawful decision-making but also to other unlawful acts committed against an alien. The administrative courts therefore had jurisdiction to rule on the unlawfulness and (the amount of) compensation.
The client was assisted in this case by Tom de Boer.