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MOSLEMI ; HAGSHNAS v. THE NETHERLANDS

Doc ref: 13921/88;13922/88 • ECHR ID: 001-929

Document date: July 9, 1991

Inbound citations: 2
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Cited paragraphs: 0
•
Outbound citations: 0

MOSLEMI ; HAGSHNAS v. THE NETHERLANDS

Doc ref: 13921/88;13922/88 • ECHR ID: 001-929

Document date: July 9, 1991

Cited paragraphs only

Application No. 13921/88 Application No. 13922/88

by Sousan MOSLEMI by Maziyar Shafie HAGSHNAS

against the Netherlands against the Netherlands

The European Commission of Human Rights sitting in private

on 9 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application No. 13921/88 introduced on 14

April 1988 by Sousan MOSLEMI against the Netherlands and registered on

9 June 1988 and to the application No. 13922/88 introduced on 15 April

1988 by Maziyar Shafie HAGSHNAS against the Netherlands and registered

on 9 June 1988;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

13921/88, 13922/88

THE FACTS

The facts as submitted by the parties may be summarised as

follows.

The applicants are Iranian citizens. The first applicant was

born in 1964 and resides in Zaandam, the Netherlands. The second

applicant was born in 1966 and resides in Maastricht, the Netherlands.

Before the Commission they are represented by Mr. R.J. Hamerslag, a

lawyer practising in Amsterdam.

The applicants entered the Netherlands on 24 April 1987 at

Schiphol, the Dutch national airport. The following day they made a

request to be admitted as refugees. On 12 and 13 May 1987

respectively, the Deputy Minister of Justice decided that they were

not allowed to enter the country. They were taken to a special centre

at Schiphol airport for asylum seekers pending the decision whether or

not they would be granted refugee status and permission to enter the

Netherlands. This centre is a limited security area at the airport

under permanent surveillance of the police. It is only possible to

leave the centre by leaving the country or entering it, once a

residence permit has been granted.

On 21 May 1987, the applicants requested the Deputy Minister

of Justice to review the decisions of 12 and 13 May. To prevent

deportation, they instituted summary proceedings (kort geding) before

the President of the Regional Court (Arrondissementsrechtbank) of

Haarlem. They withdrew these proceedings after the Deputy Minister

had decided to grant suspensive effect to their request for revision

and they had been allowed into the country on 8 June 1987.

In the meantime they requested the Regional Court to declare

their placement at the centre at Schiphol airport unlawful and to

release them on the basis of Articles 40 and 41 of the Aliens Act

(Vreemdelingenwet). They moreover claimed damages for wrongful

detention. By order of 5 June 1987 the Regional Court declared the

request inadmissible on the ground that their placement at the centre

at Schiphol airport did not constitute detention within the meaning of

Articles 19 and 26 of the Aliens Act. They appealed against this

decision to the Court of Appeal (Gerechtshof) of Amsterdam which

upheld the order of the Regional Court on 22 October 1987.

The first applicant received a residence permit for

humanitarian reasons on 13 November 1987. The second applicant was

granted the status of refugee in July 1989.

COMPLAINTS

The applicants complain under Article 5 para. 1 (f) of the

Convention that they have been unlawfully detained at the centre at

Schiphol airport.

They also submit that contrary to Article 5 para. 4 of the

Convention they were denied access to court in order to obtain a

decision on the lawfulness of their detention.

Finally, they claim compensation for their unlawful detention.

13921/88, 13922/88

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on 14 and 15 April 1988

respectively and both were registered on 9 June 1988.

On 4 December 1989 the Commission decided to join the

applications and to communicate them to the respondent Government and

invite them to submit written observations on the admissibility and

the merits of the applications.

The Government's observations were received by letter dated 16

February 1990 and the applicants' observations were dated 20 April

1990.REASONS FOR THE DECISION

Having regard to Article 30 para. 1 (c) of the Convention, the

Commission notes that the applicants have been released from the

reception centre and that they have been granted a residence permit

and the status of refugee respectively. Moreover, the Commission

notes that the applicants can claim compensation for their detention

on the basis of Article 40 of the Aliens Act, relying in this respect

on a judgment by the Supreme Court of 9 December 1988 declaring this

kind of detention unlawful. The Commission finds no special

circumstances in respect of human rights as defined in the Convention

which require examination of the application to be continued, in

accordance with Article 30 para. 1 in fine of the Convention.

For these reasons, the Commission unanimously

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

LEXI

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