H. v the Netherlands - 37833/10 [2011] ECHR 1866 (18 October 2011)

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The European Court of Human Rights (Third Section), sitting on 18 October 2011 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

1. The applicant, Mr H., is a Turkish national who was born in 1977 and lives in the Netherlands. He is represented before the Court by Mr Z.M. Alaca, a lawyer practising in Eindhoven.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 16 October 1998, the applicant applied for asylum in the Netherlands and an immigration official held a first interview (eerste gehoor) with him on his asylum request. Further interviews were held on 17 October 1998, 22 December 1998 and 14 May 2001.

4. On 18 October 2001, the applicant filed a request to grant him a residence title in accordance with the so-called “three years policy” (driejarenbeleid), as in effect at the time, according to which a residence title could be granted if a request for a residence permit had not been decided within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications.

5. On 2 February 2002 the applicant applied for a residence permit for the purpose of “stay with spouse” on the basis of his marriage on an unspecified date in 2000 with a woman holding both Netherlands and Turkish citizenship. On 17 October 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) rejected this request because the applicant did not hold a provisional residence visa (machtiging tot voorlopig verblijf). Such a visa must be applied for at a mission of the Netherlands in the petitioner’s country of origin and it entitles the holder to enter the Netherlands in order to apply for a residence permit for a stay exceeding three months for reasons not relating to asylum. The Minister did not find that, in the applicant’s case, this requirement entailed undue hardship. On 25 October 2002, the applicant filed an objection (bezwaar) against the decision of 17 October 2002.

6. On 18 December 2002 the Minister rejected the applicant’s asylum request. The Minister further decided against granting the applicant a residence title on account of the duration of the proceedings on his asylum request (tijdsverloop in de asielprocedure).

7. On 9 January 2003, the applicant filed an objection against the decision of 18 December 2002 in so far as it concerned the decision not to grant him a residence permit on account of the duration of the asylum proceedings.

8. On 15 January 2003, the applicant filed an appeal with the Regional Court of The Hague against the decision of 18 December 2002 in so far as it concerned the rejection of his asylum request.

9. On 25 February 2004, the Minister rejected the applicant’s objection of 25 October 2002 as well as his objection of 9 January 2003. The applicant filed an appeal with the Regional Court of The Hague on 19 March 2004.

10. On 24 October 2005, the Minister withdrew the decisions of 18 December 2002 and 25 February 2004.

11. On 11 April 2006, Turkey filed a request for the applicant’s extradition. This request was limited to prosecution on charges of attempts – through his involvement with and activities for an armed terrorist organisation – to undermine the constitutional order of the Turkish State, an offence defined in article 146 § 1 of the Turkish Criminal Code as in force at that time.

12. On 8 September 2006, referring to Article 3 of the European Convention on Extradition, the Roermond Regional Court (rechtbank) concluded that the applicant’s extradition to Turkey was not permissible, finding that the extradition request concerned an absolute political offence. The public prosecutor filed an appeal in cassation, which was rejected on 17 April 2007 by the Netherlands Supreme Court (Hoge Raad). No further appeal lay against this ruling.

13. By decision of 9 July 2007, the Deputy Minister of Justice (Staatssecretaris van Justitie) – the successor to the Minister for Immigration and Integration – decided to reject the applicant’s asylum request by holding Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. She based this decision on the applicant’s statements given in the course of the proceedings on his asylum request, connecting him with armed robberies and arson committed in support of Dev-Sol^¹/DHKP-C^² which acts were classified as participation in and/or support of terrorist activities as described in Resolutions 1269 and 1373 of the United Nations Security Council concerning terrorism which stipulate that participants in and/or supporters of terrorist activities are to be excluded from the protection under the 1951 Refugee Convention. She further decided not to grant him a residence permit on account of the duration of the proceedings on his asylum request and to impose an exclusion order (ongewenstverklaring) on the applicant. The Deputy Minister did not find that these decisions were contrary to the applicant’s rights under Articles 3 and/or 8 of the Convention.

14. On 31 July 2007 the applicant filed an objection with the Deputy Minister against the decision of 19 July 2007 in so far as it concerned the decision to impose an exclusion order.

15. Also on 31 July 2007, he filed an appeal with the Regional Court of The Hague against the decision of 19 July 2007 in so far as it concerned the refusal to grant him asylum and to deny him a residence permit on account of the duration of the asylum proceedings. This appeal was declared inadmissible on 17 September 2007 by the Regional Court of The Hague as the applicant had failed to submit written grounds for his appeal.

16. After the applicant had been heard on his objection on 15 May 2008 before an official board of inquiry (ambtelijke commissie), the Minister rejected the objection on 31 October 2008. In this decision, the Minister accepted that it could not be excluded that the applicant, if expelled to Turkey, would in the present circumstances run a real risk to be subjected to treatment prohibited by Article 3 of the Convention and that, for this reason, he would not be expelled for the time being. The applicant was, nevertheless and because Article 1F had been held against him, not eligible for a residence permit based on asylum-related grounds.

17. The applicant’s appeal against that decision was rejected on 29 June 2009 by the Regional Court of The Hague sitting in Utrecht. It noted at the outset that, since no opposition (verzet) had been filed against the judgment of 17 September 2007, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final. It further noted that, by judgment of 23 May 2000, the applicant had been convicted of attempted infliction of grievous bodily harm and sentenced to ten months imprisonment and that, on several occasions, the applicant had accepted a deal (transactie) proposed by a public prosecutor in order to avoid the lodging of formal criminal proceedings for drug offences. The Regional Court further noted that it was not in dispute that, if returned to Turkey, the applicant would run a real risk to be subjected to treatment proscribed by Article 3 of the Convention and that, for this reason and for the time being, he was not expelled. It further noted that the decision to hold Article 1F against the applicant in the asylum proceedings entailed that he was also not eligible for any other kind of residence title for asylum-related reasons and that this entailed a situation in which the applicant was ineligible for admission whereas at the same time no recourse would be taken to the power to expel him to Turkey. It considered that, in this connection, it was relevant to determine whether the applicant had demonstrated that the Article 3 risk opposing his return to Turkey constituted a sustained obstacle or that a continued withholding of a residence title was disproportionate in his case. On this point it considered:

“The dispute thus focuses on the question whether Article 3 of the Convention constitutes a sustained obstacle for the appellant’s expulsion to Turkey.

In this connection [the Deputy Minister] has taken the position that Article 3 of the Convention does not constitute a sustained obstacle for the appellant’s expulsion to Turkey. Referring to the notice of the Minister and Deputy Minister of Justice of 6 June 2008 concerning the application of Article 1F of the [1951 Refugee] Convention, presented by letter of 9 June 2008 to the Lower House of Parliament, the [Deputy Minister] has taken the view that the appellant, calculated from the asylum application on 16 October 1998, is staying already for ten years in the Netherlands. According to the [Deputy Minister] this does not as such entail sustainability as described in the notice of 6 June 2008 since in the notice also other conditions are set out, which must be fulfilled.

The following appears from the notice. ‘It follows from the policy concerning the application of Article 1F of the [1951 Refugee] Convention that it is in the interest of the Netherlands State that no residence title is granted to persons to whom Article 1F applies and that this principle, noting the ruling of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) of 2 June 2004 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number – “LJN”] AP2043), should only be deviated from when the obstacle based on Article 3 of the Convention for expulsion to the country of origin is of a sustained nature and the withholding of a residence title to the alien concerned is disproportionate. On 18 July 2007, the Administrative Jurisdiction Division has confirmed its previous case law. According to the case law, the term sustained is to be understood in the sense that, for a great number of years, the alien finds himself in a situation in which he cannot be expelled as this will violate Article 3 of the Convention and with no prospects of change in this situation within a not too long delay. When this it is the case and the alien has further demonstrated that he still cannot be expelled, that departure to another country than the country of origin – despite sufficient efforts to comply with his obligation to leave the Netherlands – is not possible and the applicant in addition finds himself in an exceptional situation in the Netherlands, there may a cause to examine whether the continued withholding of a residence permit is disproportionate (...) As from the ruling of the Administrative Jurisdiction Division of 18 July 2007, the proportionality is only examined where sustainability has been accepted. It has not (yet) crystallised out in the case law what number of years is to be had in mind in the practical interpretation of the notion “a great number of years”. [The Deputy Minister] considers that, in view of the special seriousness of Article 1F, it is reasonable in that practical interpretation to take a period of at least ten years to be counted from the date of a first asylum request. It follows from the above that, in special situations and provided the alien has demonstrated that all above-mentioned conditions have been met, the withholding of a residence permit in the individual case can be disproportionate.’

The Regional Court finds this policy, as set out in the Notice to the Lower House of 6 June 2008, not manifestly unreasonable. Applied to the appellants situation, it appears that the appellant does not comply with the conditions for accepting that there is a situation which opposes expulsion in a sustained manner. The Regional Court determines that the appellant has not demonstrated that departure to another country than the country of origin is not possible. The Regional Court is therefore of the opinion that the [Deputy Minister] has reasonably found that the appellant has not demonstrated that Article 3 of the Convention opposes his expulsion in a sustained manner. The examination of the question whether the alien finds himself in an exceptional situation in the Netherlands only then arises when he has been finding himself for a long time in the situation in which he cannot be expelled. Noting the above considerations, this is not the case here. Accordingly, the grounds of appeal arguing that the continued withholding of a residence permit is disproportionate do not warrant consideration.”

The Regional Court lastly rejected as unfounded the applicant’s arguments to the effect that he should be regarded as eligible for a residence permit on account of the duration of the asylum proceedings.

18. As regards the applicant’s arguments under Article 8 of the Convention, the Regional Court held:

“It is not in dispute that between the appellant, his wife and two minor children there is “family life”. The exclusion order imposed on the appellant constitutes interference in the exercise of the right to respect for family life. In his grounds of appeal, the appellant argues that the exclusion order entails his separation from his family. It must therefore be examined whether this interference is justified on grounds of Article 8 § 2 of the Convention. To this end, a reasonable balance must be struck between the interests of the individual and those of the community as a whole. The [Deputy Minister] has balanced those interests on the basis of the ‘guiding principles’ given in the Court’s judgments of 2 August 2001 (Boultif v. Switzerland) and 16 October 2006 (Üner v. the Netherlands).

The [Deputy Minister] has based the impugned decision on the finding that the exclusion order imposed on the appellant constitutes an interference in the right to respect for the family life between him, his wife and two minor children, but that this interference is justified. In view of the nature and seriousness of the crimes committed by the appellant, the [Deputy Minister] has adopted the position that the interest of the economic well-being of the country, the protection of public order and the prevention of disorder and crime, which interests are meant in Article 8 § 2 of the Convention, must prevail over the appellant’s interest in the possibility to exercise his family life. In the arguments the appellant has raised against this, including that the exclusion order has drastic and harrowing consequences and that it will lead to separation of the family living for 8 years in the Netherlands, the Regional Court sees no reason for holding that, in the given circumstances, the [Deputy Minister] could not have adopted that position.

It follows from the above that the [Deputy Minister] has correctly found no violation of Article 8 of the Convention. In the impugned decision, sufficient justice has been done to the ‘guiding principles’ set out in the Boultif and Üner judgments. The Regional Court does not follow the argument that, in balancing the interests, the [Deputy Minister] has insufficiently taken into account the interests of the children, noting the reasoning on that point given in the impugned decision.”

19. On 21 December 2009, the Administrative Jurisdiction Division accepted the applicant’s appeal against the judgment of 29 June 2009. Although it rejected the applicant’s grounds of appeal, it quashed the judgment of 29 June 2009 in part. On the basis of an ex officio examination of the impugned judgment, the Administrative Jurisdiction Division found that the Regional Court should have declared inadmissible the part of the applicant’s appeal concerning the refusal to grant him a residence permit on account of the duration of the asylum proceedings. It therefore quashed that part of the impugned judgment, declared the applicant inadmissible in respect of the part of his appeal dealing with this point and confirmed the impugned judgment for the remainder. No further appeal lay against this ruling.

20. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.

21. Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia,

- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.

22. If the exclusion clause under Article 1 F of the 1951 Refugee Convention is held against an asylum seeker, the alien concerned loses any protection which would have been available under this Convention and, consequently, becomes ineligible for a residence permit for asylum under article 29 of the Aliens Act 2000 (article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000).

23. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings.

24. Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to public safety or national security. An exclusion order entails a ban on residing in or visiting the Netherlands.

25. An exclusion order, which is immediately enforceable, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect.

26. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 4,500 euros. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case whether to prosecute or not.

27. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.

28. Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien’s request for admission to the Netherlands automatically has, amongst others, the following legal consequences:

- officials entrusted with the supervision of aliens are authorised – if the alien has not voluntarily left the Netherlands within the delay fixed for this purpose – to proceed with his/her effective removal from the Netherlands.

29. Under the preceding Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called “multi-purpose decision” (meeromvattende beschikking).

30. Pursuant to the provisions of the Benefit Entitlement (Residence Status) Act (Koppelingswet), in force as from 1 July 1998, and article 10 of the Aliens Act 2000 an alien who does not have lawful residence in the Netherlands is not entitled to any benefits in kind, facilities and social security benefits issued by decision of an administrative authority. Derogation is possible if the entitlement relates to education, the provision of care that is medically necessary, the prevention of situations that would jeopardise public health or the provision of legal assistance to the alien.

31. In a ruling of 3 December 2008 (LJN BG5955), the Administrative Jurisdiction Division considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi-purpose decision on a request for a residence permit, that the competence to proceed with effective removal is a legal effect ipso iure (rechtsgevolg van rechtswege) of the refusal of such a request, and that this competence is not of a discretionary nature. Although reiterating that in principle no further remedy lies against a multi-purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned, the Administrative Jurisdiction Division also accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of article 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative appeal proceedings.

32. A refusal on the basis of Article 1 F of the 1951 Refugee Convention to grant an asylum-related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention.

33. In two rulings handed down on, respectively, 2 and 9 June 2004 (nos. 200308871/1 and 200308511/1), the Administrative Jurisdiction Division of the Council of State noted that, according to article 45 § 1 of the Aliens Act 2000, a refusal to grant asylum entailed that the person concerned should leave the Netherlands voluntarily, failing which he or she could be expelled. It accepted that an alien – who was denied entry pursuant to Article 1 F of the 1951 Convention but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of Article 3 – can be denied a residence permit. However, in order to limit the size of this group as much as possible, it should be examined first whether a person qualifies for asylum under Article 29 § 1 of the Aliens Act 2000 before determining the question whether the exclusion clause of Article 1 F of the 1951 Convention applies. Where an asylum seeker is able to demonstrate that Article 3 of the Convention constitutes a sustained obstacle to his or her expulsion to the country of origin, it is for the immigration authorities to assess whether or not a permanent denial of a residence title would be disproportionate in the particular circumstances of the case. In the two cases at issue, the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of Article 3, as they had first examined whether and concluded that the exclusion clause of Article 1 F applied. The Administrative Jurisdiction Division concluded that, therefore, the immigration authorities’ examination of these cases had been incomplete.

34. These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but, pursuant to Article 1 F of the 1951 Convention, is ineligible for any kind of residence permit, no expulsion order will be issued, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to issue an order for his or her expulsion as soon as his or her effective removal will no longer entail a risk of treatment contrary to Article 3 in the country of origin or to issue an order for removal to a third State willing to accept the person concerned.

Eligibility for an eventual residence permit may arise when the obstacle based on Article 3 for the alien’s return to his/her country of origin is of a sustained nature. In practice, such a situation may arise after a period of unlawful residence in the Netherlands of the alien concerned for at least ten years whilst Article 3 continues to stand in the way of removal to his/her country of origin and without any prospect of change in that situation in the foreseeable future, and where the alien concerned has demonstrated that despite his/her best efforts there is no possibility for him/her to relocate to a third country, and where the continued withholding of a residence permit would be disproportional.

35. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

36. The applicant complains that the Netherlands have unjustly imposed an exclusion order on him as he cannot return to Turkey where he runs a real risk of being subjected to treatment in violation of Article 3 of the Convention.

37. The applicant further complains that the Netherlands authorities, in their continued denial to grant him a residence title, interference in an unjustified manner with his right to respect for his family life as guaranteed by Article 8 of the Convention.

38. The applicant complained that, as he cannot return to Turkey as this would entail a violation of Article 3, the Netherlands have unjustly imposed an exclusion order on him.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

39. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens, and that the Convention does not guarantee, as such, any right to enter, reside or remain in a State of which one is not a national (see Javeed v. the Netherlands (dec.), no. 47390/99, 3 July 2001). Moreover, neither Article 3 of the Convention nor any other provision of the Convention or its Protocols guarantees the right of political asylum. However, expulsion by a Contracting Party may give rise to an issue under Article 3 and thus engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see, inter alia, Chahal v. United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74; and A. v. the Netherlands, no. 4900/06, § 141, 20 July 2010).

40. Turning to the facts of the present case, the Court notes that for reasons based on Article 3 of the Convention the Netherlands authorities do not, at least not for the time being, intend to proceed effectively with the applicant’s removal to Turkey and that it appears that, should such steps be taken, the applicant can challenge this (see § 31 above).

41. In these circumstances, the Court considers that, in the absence of any realistic prospects for his expulsion to Turkey, the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention in so far as he can be understood as seeking to complain that his return to Turkey will be in violation of his rights under Article 3 of the Convention. To the extent that the applicant also seeks to complain that, pursuant to the exclusion order imposed on him, he is denied a residence title allowing him to stay in the Netherlands, the Court considers that this complaint must be rejected for being incompatible ratione materiae as neither Article 3 nor any other provision of the Convention and its Protocols guarantees, as such, a right to a residence permit (see Bonger v. the Netherlands (dec.), no. 10154/04, 15 September 2005). It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

42. The applicant further complains that the Netherlands authorities, in their continued denial to grant him a residence title, interfere in an unjustified manner with his right to respect for his family life as guaranteed by Article 8 of the Convention, which provides in its relevant part:

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”.

43. The Court considers that this part of the application must be brought to the notice of the respondent Government in accordance with Rule 54 § 3 (b) of the Court’s Rules of Procedure and the Government be invited to submit their written observations on the admissibility and merits of this complaint.

Decides to adjourn the examination of the applicant’s complaint concerning his right to respect for his family life within the meaning of Article 8 of the Convention;

1 “Revolutionary Left”; an extreme left-wing armed movement, classified as a terrorist organisation by the Turkish authorities.

2 “Revolutionary People's Liberation Party-Front”; a Marxist-Leninist party in Turkey having its origins in Dev-Sol and like the latter designated as a terrorist organisation by the Turkish authorities.

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You are here: BAILII >> Databases >> European Court of Human Rights >> H. v the Netherlands - 37833/10 [2011] ECHR 1866 (18 October 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1866.html Cite as: [2011] ECHR 1866