THIRD SECTION

DECISION

Application no . 44696/13 Jude KASANGAKI against the Netherlands

The European Court of Human Rights ( Third Section ), sitting on 21 April 2015 as a Chamber composed of:

Josep Casadevall, President ,

Luis López Guerra,

Ján Šikuta,

Kristina Pardalos,

Johannes Silvis,

Valeriu Griţco,

Iulia Antoanella Motoc, judges ,

and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 11 July 2013 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Jude Kasangaki , is a Ugandan national, who was born in 1977 and lives in Dronten . He was represented before the Court by Mr G.J. Dijkman , a lawyer practising in Utrecht .

A. The circumstances of the case

1. Asylum proceedings

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

3. On 19 February 2010 the applicant lodged a request for asylum.

4. On 12 October 2011 the Minister for Immigration, Integration and Asylum Policy ( Minister voor I mmigratie , Integratie en A siel ) gave a decision rejecting the applicant ’ s request as lacking an established basis in fact. This constituted a return decision ( terugkeerbesluit ).

5. The applicant lodged an appeal ( beroep ).

6. The Regional Court held a hearing on 24 January 2012. It sat in a formation consisting of a single judge, Judge L.

7. On 30 October 2012 the Regional Court ( rechtbank ) of The Hague, sitting in Zwolle, gave a decision dismissing the appeal. The decision states that it was given by two judges, Judge L. and Judge S. It was signed by Judge S. and the registrar ( griffier ).

8. The applicant lodged a further appeal ( hoger beroep ) with the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ) of the Council of State ( Raad van State ) (hereafter “the Administrative Jurisdiction Division”). In addition to challenging the decision of the Regional Court on substantive grounds, he submitted a ground of appeal to the effect that the Regional Court had given its decision in a different composition than that which had held the hearing, and an illegal two-judge composition at that.

9. On 26 March 2013 the Regional Court informed the Administrative Jurisdiction Division at its request that the hearing had been presided over by Judge L. and that Judge L. and the registrar had discussed the case together. However, circumstances had led to the decision that the case should be further dealt with by Judge S. Judge S. and the registrar had discussed the case in private. The parties had not been informed of this development except through the decision in issue.

10. The Administrative Jurisdiction Division gave its decision on 18 April 2013. Noting that neither party had assented to the replacement of Judge L. without a new hearing and the decision had been signed by a different judge than the one who had presided over the hearing, it allowed the appeal without going into any of the other grounds, quashed the decision of the Regional Court and remitted the case for rehearing.

11. The Court has not been informed of the outcome of any subsequent proceedings.

2. Detention proceedings

12. On 29 November 2012, the applicant ’ s appeal having been dismissed by the Regional Court, the applicant was questioned by a police officer. The official record drawn up by the latter includes the following:

“I [the police officer] gave the alien the requisite information. He stated: I have had discussions with the Immigration and Naturalisation Service ( Immigratie- en naturalisatiedienst ; ‘ IND ’ ) and with my lawyer Mr Gerben Dijkman. I know that I am to leave the Netherlands. My lawyer has lodged an appeal. That was dismissed. I know that I should have left the Netherlands on 30 October 2012. My lawyer has told me that I had 28 days after 30 October 2012 to leave the Netherlands. I had an appointment yesterday to discuss this. I was collected today from the asylum seekers ’ centre in Almere. I have no work. I have lived at the asylum seekers ’ centre continuously. I had food and drink there and I could sleep there. I have no money. I have no residence permit for any other European country. I have no relatives in the Netherlands or any other European country. I receive medication against stress and nightmares. I have no business interests in the Netherlands or any other European country.

I asked the alien whether he had understood me. He stated that he had understood me and understands what I have told him.

I have told him that I am placing him in aliens ’ detention ( vreemdelingenbewaring ) because I do not trust him to leave the Netherlands, considering that he had 28 days to leave the Netherlands after 30 October 2012 and today is Thursday 29 November 2012. The alien had no satisfactory explanation for this. He did not wish to contact the Ugandan embassy or consulate.”

13. The police officer, acting in the name of the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie , by this time the successor to the Minister for Immigration, Integration and Asylum Policy), ordered the applicant taken into aliens ’ detention pursuant to section 59(1), introductory sentence and sub a, of the Aliens Act 2000 (( Vreemdelingenwet 2000 ), see below). According to the decision (a tick-box form), the measure was required by:

“the interests of public order because

there is a danger that the person concerned will evade supervision

the person concerned is evading or impeding the preparation of his departure or the expulsion procedure;

which is borne out by the facts or circumstances that the alien

has previously received a visa, decision, information note or order from which the duty to leave the Netherlands is apparent and he has not done so of his own accord within the time-limit implied therein or set for that purpose;

has no fixed abode;

has no adequate means of subsistence[.]”

14. On various occasions the applicant was invited to cooperate in obtaining the requisite Ugandan travel documents and leave the country voluntarily. Each time he refused.

15. The applicant lodged an appeal against the detention order with the Regional Court (section 94(1) of the Aliens Act 2000; see below), which, having held a hearing on 10 December 2012, gave a decision on 17 December 2012 finding that the applicant ’ s detention was lawful. The applicant lodged a further appeal against this decision with the Administrative Jurisdiction Division, which was dismissed on 25 January 2013.

16. The applicant lodged two more appeals with the Regional Court of The Hague challenging his continued detention. The applicant sought his release on the ground that there was no realistic prospect of his actually being expelled. Decisions continuing the applicant ’ s detention were given on 29 January 2013 and 12 March 2013.

17. The applicant lodged a fourth appeal, invoking the same ground, on 10 April 2013.

18. A hearing took place on 23 April 2013 before the Regional Court of The Hague, sitting in Utrecht. Neither the applicant nor the Deputy Minister attended. On the same day the Deputy Minister informed the Regional Court by fax that the detention measure had been lifted.

19. Invited to comment, the applicant ’ s representative replied by fax the following day that he wished to continue the proceedings in order to claim damages under section 106 of the Aliens Act 2000 (see below). He argued that the applicant ’ s detention had become retrospectively unlawful as a result of the Administrative Jurisdiction Division ’ s decision of 18 April 2013 (see above).

20. On 4 June 2013 the Regional Court gave a decision dismissing the appeal. Its reasoning included the following:

“The Regional Court considers that the fact that the decision of the Regional Court, sitting in Zwolle, of 30 October 2012 was overturned by the Administrative Jurisdiction Division and [the case] was remitted to the Regional Court does not mean that the continuation of the detention was unlawful at the time. The circumstance that in retrospect the asylum proceedings were in the appeal stage at the time of the period of detention in issue and the effect of the decision of the [Deputy Minister] was suspended constitutes, in the opinion of the Regional Court, only a temporary impediment. Moreover, there appear to be no reasons to believe that the appeal will not be decided in the foreseeable future ( binnen afzienbare tijd ). Already for this reason the Regional Court cannot follow the [applicant] ’ s arguments on this point. [The Deputy Minister] has lifted the measure of detention because of the decision of the Administrative Jurisdiction Division of 19 April 2013 and after having consulted this Regional Court, sitting in Zwolle. The Regional Court takes the view that the Deputy Minister] should be allowed a little time to consider the follow-up steps to be taken. [Since the detention was terminated] five days (including three working days) after the [Administrative Jurisdiction Division] ’ s decision the Regional Court sees no reason to hold that the detention was unlawful before 23 April 2013.”

21. No further appeal lay against this decision.

B. Relevant domestic law

1. Composition of the Regional Court

22. Administrative cases brought before the Regional Court shall normally be dealt with by a single-judge chamber ( enkelvoudige kamer , section 8 :10(1) of the General Administrative Law Act ( Algemene wet bestuursrecht ) ), which may refer them to the multi-judge chamber ( meervoudige kamer , section 8:10(2)).

23. Save as otherwise provided, a multi-judge chamber of a jurisdictional body shall consist of three judges (section 6(2) of the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie )).

2. Aliens ’ detention

(a) Substantive law

24. The relevant substantive provisions are the following:

(i) The Aliens Act 2000

Section 59

“1. If necessary in the interests of public order , or if national security so requires, Our [competent ] Minister may, for the purpose of expulsion ( uitzetting ), order the detention of an alien who:

(a) is not lawfully resident; ...

3. An alien ’ s detention shall not occur, or shall be terminated, as soon as he expresses the wish to leave the Netherlands and the opportunity to do so exists.

5. ... detention pursuant to the first paragraph shall not be of longer duration than six months.

6. In derogation from the fifth paragraph ... detention pursuant to the first paragraph may be extended by no more than twelve months if it is apparent that despite all reasonable efforts expulsion will take longer because of the alien ’ s failure to cooperate in his expulsion or the documents from third countries necessary for that purpose are still missing. ... ”

Section 106

“1. If the Regional Court orders the lifting of a measure entailing deprivation of liberty, or the deprivation of liberty is lifted before the request for its lifting is considered, it may award the alien compensation at the expense of the State. Damage shall include non-pecuniary damage. [Article 90] of the Code of Criminal Procedure ( Wetboek van Strafvordering ) shall apply by analogy. ...

2. The first paragraph shall apply by analogy if the Administrative Jurisdiction Division orders the lifting of the measure entailing deprivation of liberty .”

(ii) The Code of Criminal Procedure

Article 90

“1. C ompensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so. ...”

(b) Legal remedies

25. The relevant legal remedies are prescribed by the Aliens Act 2000, which, in its relevant parts, provide as follows:

Section 8 4

“ In derogation from Article 37 § 1 of the Act on the Council of State ( Wet op de Raad van State ), no further appeal lies against a decision of the Regional Court

a. about a decision or act based on ... Chapter 5 [i.e. including section 59];

..:

d. about the grant of compensation as referred to in section 106 . ”

Section 94

“1. Our [competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty as referred to in [section 59 ] no later than the twenty-eighth day after communication of the decision, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty. The appeal shall also constitute a request for the award of damages.

2. The Regional Court shall set the date for the examination of the appeal at the hearing immediately. The hearing shall take place no later than the fourteenth day after the notice of appeal or the notification, as the case may be, is received. The Regional Court shall summon the alien to appear either in person or represented by an authorised representative, and the competent Minister to appear represented by an authorised representative, in order to be heard. In derogation of section 8:42 of the General Administrative Law Act, [this time-limit] cannot be extended.

3. The Regional Court shall give its decision orally or in writing. If in writing, the decision shall be given no later than seven days after the closure of the examination of the appeal. In derogation of section 8:66 of the General Administrative Law Act, [this time-limit] cannot be extended.

4. If the Regional Court finds on appeal that the application or implementation of the decision [to impose deprivation of liberty] is contrary to this Act or is – on consideration of all the interests involved – not reasonably justified, it shall accept the appeal. In such a case the Regional Court shall order that the deprivation of liberty be terminated or the manner of its implementation altered.

5. The first, third and fourth paragraphs shall apply by analogy to a decision extending a measure entailing deprivation of liberty as referred to in section 59(6). ...”

Section 95

“1. In derogation from section 84 under a., a further appeal against the decision of the Regional Court referred to in section 94(1) shall lie to the Administrative Jurisdiction Division. ...”

Section 96

“1 . If the appeal referred to in section 94 has been dismissed and the alien appeals against the continuation of the deprivation of liberty, the Regional Court shall terminate its preliminary investigation ( vooronderzoek ) within one week after receiving the notice of appeal. In derogation from section 8:57 of the General Administrative Law Act, the Regional Court may decide even without the assent of the parties that there shall be no hearing.

2. The Regional Court shall give its decision orally or in writing. If in writing, the decision shall be given no later than seven days after the closure of the examination of the appeal. In derogation of section 8:66 of the General Administrative Law Act, [this time-limit] cannot be extended.

3. If the Regional Court in considering the appeal finds that the imposition or execution of the measure is contrary to this Act or not reasonably justified on a balance of all the interests involved, it shall declare the appeal well-founded. In that case the Regional Court shall order the lifting of the measure or a change in the way in which it is executed. ”

3. Relevant case-law

26. On 21 March 2011 the Administrative Jurisdiction Division gave a decision (no. 201100307/1/V3 , ECLI:NL:RVS:2011:BP9280 ) in which it held inter alia that although there was a close interconnection between the return decision on the one hand and an order of aliens ’ detention on the other, joint consideration of the two in a single appeal was possible only if both were included in a single decision. If the return decision was given separately, then the system of legal remedies provided by the Aliens Act 2000 prevented the competent administrative tribunal from considering the lawfulness of the return decision together with the order of aliens ’ detention. In the latter event, it was only if the return decision was held to be unlawful in the dedicated proceedings that the tribunal called upon to consider the lawfulness of the aliens ’ detention could be faced with the question what consequences might result for the lawfulness of aliens ’ detention. This did not mean that the alien was denied a legal remedy in this respect, since the lawfulness of the return decision could be challenged in separate administrative proceedings and the possibility existed to seek an order for a provisional measure from the provisional measures judge ( voorzieningenrechter ) if need be.

27. On 14 May 2012 the Administrative Jurisdiction Division gave a decision (no. 201200935/1/V3, ECLI:NL:RVS:2012:BW6197 ) in which it held obiter dictum that if a return decision was annulled on the ground that it was unlawful, then any aliens ’ detention ordered in pursuance of that decision became retrospectively unlawful and entitled the alien concerned to compensation under section 106 of the Alien ’ s Act notwithstanding any previous judicial decision finding the detention to be lawful. The actual case, however, was different in that the return decision had not been annulled on grounds of unlawfulness.

COMPLAINTS

28. The applicant complained under Article 5 § 1 of the Convention that his detention had become retrospectively unlawful as a result of the quashing, by the Administrative Jurisdiction Division on 18 April 2013, of the Regional Court ’ s decision of 30 October 2012.

29. He complained separately under Article 5 § 1 of the Convention that he was not released immediately after 18 April 2013 but kept in detention for a further five days, until 23 April 2013.

30. He complained under Article 5 § 4 of the Convention that it was not possible for him to seek effective judicial review of the lawfulness of his detention within a reasonable time or force the Regional Court to give a decision more speedily than it did.

31. He complained under Article 5 § 5, as the Court understands it, of the failure to grant him compensation in respect of either alleged head of violation of Article 5 § 1.

THE LAW

32. As relevant to the applicant ’ s complaints, Article 5 of the Convention provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Complaints under Article 5 § 1 of the Convention

33. The applicant complained that his detention was unlawful as a result of the quashing, by the Administrative Jurisdiction Division ’ s decision of 18 April 2013 (see paragraph 10 above), of the Regional Court ’ s decision of 30 October 2012. He relied on Article 5 § 1 of the Convention. He made this complaint in respect of the entire length of his detention, from 29 November 2012 until his release on 23 April 2013, and separately for the five-day period from 18 April 2013 until 23 April 2013.

34. The Court sees no need to differentiate between the two complaints.

35. The Court has held that not every fault discovered in a detention order renders the underlying detention as such unlawful for the purposes of Article 5 § 1. A period of detention is, in principle, “lawful” if it is based on a court order. A subsequent finding of a superior domestic court that a lower court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention (see, inter alia , Benham v. the United Kingdom , 10 June 1996, § 42 , Reports of Judgments and Decisions 1996 ‑ III ; Douiyeb v. the Netherlands [GC], no. 31464/96, § 45, 4 August 1999; Khudoyorov v. Russia , no. 6847/02, § 128, ECHR 2005 X (extracts) ; and Mooren v. Germany [GC], no. 11364/03 , § 74 , 9 July 2009 ). Moreover, f or the assessment of compliance with Article 5 § 1 of the Convention a basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction (see Marturana v. Italy , no. 63154/00 , § 78, 4 March 2008 ) or where the interested party did not have proper notice of the hearing ( see Khudoyorov , cited above, § 129; and Liu v. Russia , no. 42086/05, § 79, 6 December 2007 ) – and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court ( ibid. ). A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court ’ s case-law (compare Liu , cited above, § 81; Garabayev v. Russia , no. 38 411/02, § 89, 7 June 2007, ECHR 2007 ‑ ... (extracts); and Marturana , cited above, § 79). Accordingly, unless they constitute a gross and obvious irregularity, defects in a detention order may be remedied by the domestic appeal courts in the course of judicial review proceedings (see Mooren , cited above, § 75).

36. Turning to the applicant ’ s two complaints under Article 5 § 1, the Court observes that they are based on the premise that the Administrative Jurisdiction Division ’ s decision of 18 April 2013 invalidated the Deputy Minister ’ s return decision of 12 October 2011 (see paragraph 4 above) with retroactive effect. This would mean, in the light of the Administrative Jurisdiction Division ’ s case-law (see its decision of 14 May 2012, paragraph 27 above, in particular), that the aliens ’ detention ordered in pursuance thereof would also be retrospectively unlawful.

37. It appears, however, that the Administrative Jurisdiction Division in its decision of 18 April 2013 did not declare the return decision to be unlawful, but overturned the Regional Court ’ s decision of 30 October 2012 (see paragraph 7 above) on the formal ground that it had been given by the Regional Court in an unlawful composition. The Administrative Jurisdiction Division remitted the case in order that the lawfulness of the return decision be considered afresh by the Regional Court properly composed. The Court has not been informed of any decision on the merits given following remittal.

38. The Court therefore cannot find it established that the Deputy Minister ’ s return decision lost its effect ab initio . Nor do the facts of the present case, as stated by the applicant, allow the Court to find that the applicant ’ s detention was for any other reason tainted by an irremediable irregularity.

39. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 5 § 4 of the Convention

40. The applicant complained under Article 5 § 4 of the Convention that it was not possible for him to seek effective judicial review of his detention. As the Court understands his argument, his point is that he could not obtain a speedier decision on the lawfulness of the return decision from the Administrative Jurisdiction Division, which meant that his aliens ’ detention was prolonged as a result.

41. The Court observes that the applicant was taken into aliens ’ detention on 29 November 2012 (see paragraphs 12 and 13 above). The lawfulness of his detention was subject to automatic review by the Regional Court, in proceedings required to be initiated by the Deputy Minister ex officio within twenty-eight days from the day on which aliens ’ detention had been ordered unless the applicant himself lodged an appeal first. In either event, a hearing was to take place within fourteen days thereafter and a decision had to be taken no later than seven days after that (section 94(1) of the Aliens Act 2000; see paragraph 2 5 above) . A further appeal could be lodged with the Administrative Jurisdiction Division (section 95(1); ibid. ); the Court notes that the applicant actually did so. Eventually he obtained a decision from the Administrative Jurisdiction Division on 17 January 2013 – two months and eight days after he was first detained.

42. In addition, the applicant had the possibility – of which he availed himself – subsequently to lodge appeals challenging his continued detention to the Regional Court. The time-limits prescribed by law were such that a decision had to be given no later than within fourteen days after the introduction of the appeal (section 96; ibid. ).

43. Throughout the proceedings under sections 94 and 96 of the Aliens Act 2000 the applicant was entitled to argue that his detention or its continuation was unlawful in terms of that Act or disproportionate (see, in particular, sections 94(4) and 96(3)). From this it follows that a decision in separate proceedings reversing the return decision was not per se a prerequisite for a successful challenge to the lawfulness of the detention.

44. To the extent that the applicant bases his complaint on the argument that in his particular case a decision establishing the unlawfulness of the return decision was needed for him to obtain his release from aliens ’ detention, the Court notes that the Administrative Jurisdiction Division, in its decision of 21 March 2011 (see paragraph 26 above), has pointed to a legal remedy in the form of a request to the provisional measures judge for an appropriate provisional measure.

45. The Court concludes that the applicant had access to a procedure by which the lawfulness of his detention could be determined speedily by a court.

46. It follows that this part of the application also is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaint under Article 5 § 5 of the Convention

47. The applicant ’ s complaint under Article 5 § 5 of the Convention, as the Court understands it, is that compensation under section 106 of the Aliens Act 2000 (see paragraph 25 above) ought to have been awarded to him, if not for the entire period of his detention, then at least for the five days from 18 April 2013 until 23 April 2013.

48. The Court refers to its conclusion in paragraph 37 above, from which it follows that no issue under Article 5 § 5 can arise.

49. It follows that the remaining part of the application too is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Josep Casadevall Registrar President