FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49816/99 by Küçük Mehmet MERİÇ against the Netherlands

The European Court of Human Rights (First Section) , sitting on 18 September 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application introduced on 25 June 1999 and registered on 23 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Küçük Mehmet Meriç, is a Turkish national of Kurdish origin, born in 1966 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.

A. The circumstances of the case

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

On 28 October 1998, the applicant and seventeen others, who were found concealed in a vehicle bound to leave the Netherlands for the United Kingdom, were arrested by the Royal Constabulary ( Koninklijke Marechausee ) on suspicion of being illegal aliens. After a verification of his identity, nationality and residence title, the applicant was placed in aliens' detention for the purposes of his expulsion ( vreemdelingenbewaring ) under Article 26 § 1 (a) of the Aliens Act ( Vreemdelingenwet ).

On 29 October 1998, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds and, on this basis, an order was issued for his placement in aliens' detention under Article 26 § 1 (c) of the Aliens Act. On 13 November 1998, the applicant was interviewed by an official of the Ministry of Justice in relation to the grounds for his request for asylum.

On 20 November 1998, the State Secretary of Justice ( Staatssecretaris van Justitie ) rejected the request for asylum or a residence permit on humanitarian grounds and ordered the applicant's expulsion from the Netherlands. The applicant was placed in aliens' detention for the purposes of his expulsion in accordance with Article 26 § 1 (a) of the Aliens Act.

On 24 November 1998, the State Secretary of Justice sent a notification to the Administrative Law Division ( Sector Bestuursrecht ) of the Hague Regional Court ( Arrondissementsrechtbank ) sitting in 's-Hertogenbosch stating that the applicant had been held in aliens' detention for a period of four weeks without having filed an appeal against the decision of his placement in aliens' detention. This notification is considered on a par with a first appeal under Article 34a § 2 of the Aliens Act.

On 25 November 1998, the applicant filed an appeal with the Administrative Law Division of the Hague Regional Court sitting in 's ‑ Hertogenbosch against the State Secretary's decision of 20 November 1998. He further requested the Regional Court for an injunction on his expulsion pending the appeal proceedings. As he had been placed in aliens' detention he was not required, like asylum seekers not placed in such detention, first to file an objection ( bezwaarschrift ) with the State Secretary of Justice before filing an appeal with the Hague Regional Court.

On 8 December 1998, following a hearing held on 7 December 1998 in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the appeal filed by way of a notification. It considered that the applicant's arrest and placement in aliens' detention were lawful under the relevant statutory provisions. It held that there were serious grounds for believing that the applicant would seek to find ways of avoiding his expulsion. The Regional Court found that there were serious doubts as to the veracity of the applicant's account that he had come to the Netherlands to apply for asylum, as at the moment of his arrest he had been at the point of leaving the Netherlands. The Regional Court found it established that he had intentionally sought to evade any form of control of entry of aliens and had sought to leave the Netherlands in an uncontrolled manner.

In these circumstances, the Regional Court did not find that the applicant's request for asylum stood in the way of (a continuation of) his placement in aliens' detention. Noting that, at the time of his arrest and to date, the applicant did not hold a valid residence title, did not have sufficient means of subsistence and had not given his real name, the Regional Court found that there were sufficient grounds to justify the measure of placement in aliens' detention. It finally considered that the applicant's request for an injunction on his expulsion pending the appeal proceedings on the refusal to grant him asylum or a residence permit did not, as such, affect the lawfulness of his placement in aliens' detention as pending the determination of this request it could not be said that there were no prospects for expulsion. Moreover, there were no indications in the applicant's case that it was highly likely that his request for an injunction would be successful. In this respect the court stated that it assumed that the request for an injunction would be dealt with in the near future. In the court's opinion, there were as yet realistic perspectives for the applicant's expulsion and the authorities were sufficiently diligent in their activities aimed at the applicant's expulsion.

On 23 April 1999, the applicant himself filed an appeal with the Hague Regional Court against the measure of placement in aliens' detention andhe requested compensation for the time spent in aliens' detention.

On 3 June 1998, following a hearing held on the same day in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the applicant's appeal of 23 April 1999. Noting that the lawfulness of this placement had already been determined in its decision of 8 December 1998, it limited its examination to the lawfulness of the applicant's continued placement in aliens' detention.

It noted that, according to the relevant domestic case-law, the interest of an alien to be released from aliens' detention increases with the passage of time; that, where a placement in aliens' detention exceeds a period of six months, it is generally held that the alien's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion and that, depending on the specific circumstances of each case, this point in time may be reached before or after six months have passed.

As to the applicant's situation, the Regional Court concluded that his placement in aliens' detention remained justified also insofar as it had exceeded six months. It held on this point that the applicant had sought ways to avoid expulsion in that he had been apprehended while attempting to leave the Netherlands whereas he had not had any intention to apply for asylum in the Netherlands and had only done so to delay his expulsion. Insofar as the applicant relied on the fact that he had filed a request for an injunction on his expulsion, the Regional Court held that this request could not be considered as having such chances of success that, on that ground, his placement in aliens' detention should be terminated.

Insofar as the applicant argued that, in all likelihood, he would be subjected to torture in Turkey, the Regional Court considered that this argument had only been raised at the hearing and had remained fully unsubstantiated. It further held that the circumstance that the determination of the applicant's request for an injunction was taking an unusually long time did not imply that, for this reason, his placement in aliens' detention should be regarded as unlawful. Noting the State Secretary's submission that activities aimed at the applicant's expulsion would be continued as soon as the applicant's request for an injunction had been decided, the Regional Court found that the authorities were sufficiently diligent in their activities aimed at the applicant's expulsion. It further noted that the applicant possessed a Turkish identity card, with which his expulsion could be carried out within a very short period of time. The Regional Court concluded that it had not been established that the applicant's expulsion could not be effectuated within a reasonable time. Consequently, it rejected the applicant's request to be awarded compensation for the time spent in aliens' detention.

On 30 June 1999, following a hearing held on 15 June 1999, the President of the Hague Regional Court granted the applicant's request for an injunction on his expulsion pending the appeal proceedings on his request for asylum. The President noted the State Secretary's intention to investigate the applicant's claims for asylum further in view of a Turkish warrant for the applicant's arrest, which was dated 27 November 1998 and had been submitted to the Hague Regional Court by the applicant, according to which he was suspected of having aided and sheltered persons involved in the PKK, as this document gave rise to doubts as to the assessment of the applicant's request for asylum. The President shared these doubts and concluded that, pending an investigation of the authenticity of this arrest warrant, the applicant's expulsion would not be opportune. This decision was notified to the parties on 5 July 1999.

On 13 July 1999, on the basis of the decision of the President of the Hague Regional Court, the State Secretary issued an order for the applicant to be released from aliens' detention. The applicant was released on the same day.

On 30 November 1999, the applicant's representative was informed by the representative of the State Secretary that the latter had withdrawn his negative decision on the applicant's request for asylum. On the assumption that, in these circumstances, the applicant would withdraw his appeal to the Hague Regional Court an offer was made to compensate the applicant for his court fees.

No further information has been submitted as to the further proceedings on the applicant's request for asylum.

B. Relevant domestic law and practice

Article 26 of the Aliens Act, insofar as relevant, provides:

“1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained:

a. aliens whose expulsion has been ordered;

b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered;

c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 , pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees.

2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so.

3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month.

...”

An alien whose expulsion has been ordered can, in principle, remain in aliens' detention for an unlimited period of time. The lawfulness of a placement in aliens' detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects for expulsion within a reasonable time, it can order that the measure of placement in aliens' detention be terminated.

It has been established in the case-law of the Legal Uniformity Division ( Rechtseenheidskamer ) of the Hague Regional Court that the interest of an alien to be released from aliens' detention increases with the passage of time. Where a placement in aliens' detention exceeds a period of six months, it is generally held that the alien's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control.

Article 15 of the Netherlands Constitution ( Grondwet ) provides:

“1. Other than in the cases laid down by or pursuant to law, no one may be deprived of his liberty.

2. Anyone who has been deprived of his liberty other than by order of a court may request a court to order his release. In such a case he shall be heard by the court within a period to be laid down by law. The court shall order his immediate release if it considers the deprivation of liberty to be unlawful.

3. The trial of a person who has been deprived of his liberty pending trial shall take place within a reasonable time.

4. A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is incompatible with the deprivation of liberty.”

Article 34a of the Aliens Act provides as follows:

“1. A measure taken under this Act to the effect of a restriction or deprivation of liberty shall, for the application of Article 8:1 § 1 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), be considered on a par with a decision ( besluit ) .

2. On a first appeal against a decision to the effect of a deprivation of liberty, the Regional Court shall hear the alien within two weeks, either during the preliminary phase of the proceedings under Article 8:44 of the General Administrative Law Act, or at the court hearing itself.

3. If the appeal is directed against a decision referred to in the second paragraph, the Regional Court shall set the time of the hearing without delay and in any event not later than two weeks after the day on which the appeal notice has been sent. Notwithstanding the provisions of Article 8:42 § 2 of the General Administrative Law Act the time-limit referred to in that provision shall not be extended.

4. The Regional Court shall give judgment in writing within two weeks after the hearing is closed, unless it immediately gives an oral judgment during the hearing. Notwithstanding the provisions of Article 8:66 § 2 of the General Administrative Law Act, the time-limit referred to in that provision shall not be extended.

5. If the Regional Court finds that the application or execution of the measure is in conflict with this Act or, having balanced all interests involved, cannot reasonably be considered to be justified, it shall declare an appeal under this provision well-founded and order the discontinuation of the measure or an alternate method of execution.”

Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal ( Gerechtshof ) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127)

There is no time-limit for the filing of an appeal against a decision of placement in aliens' detention and in principle a person placed in aliens' detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens' detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens' detention as from the date of the last judicial decision taken on this point.

Pursuant to Article 86 of the Aliens Decree ( Vreemdelingenbesluit ), the Minister of Justice must send a notification to the competent court when an alien has spent four weeks in aliens' detention where the person concerned has not himself filed an appeal against this decision. This notification is considered on a par with a first appeal within the meaning of Article 34a § 2 of the Aliens Act.

COMPLAINTS

The applicant complains that his detention for the purposes of his expulsion from the Netherlands was contrary to his rights under Article 5 §§ 1 (f), 4 and 5 of the Convention, in that there were no real prospects for his imminent expulsion during his detention and that therefore his placement in aliens' detention was unlawful and his request for compensation was wrongly rejected by the Hague Regional Court.

The applicant further complains under Article 5 §§ 1 (f), 4 and 5 of the Convention that he was arrested and taken into detention within two hours after his arrival in the Netherlands. He submits that, normally speaking, aliens have the right to apply for asylum within 24 hours in a centre for asylum seekers and are not deprived of their liberty. This also has consequences for the proceedings on an asylum request since, in such circumstances, aliens are able to prepare for their interview with immigration officials and have the opportunity to submit corrections to the record of this interview and further benefit from the possibility to file an objection with the State Secretary before filing an appeal with the Hague Regional Court.

THE LAW

The applicant complains that, given the duration of his detention and the lack of prospects of his imminent expulsion, this detention for the purposes of his expulsion from the Netherlands violated his rights under Article 5 §§ 1 (f), 4 and 5 of the Convention. Relying on the same provisions of Article 5, the applicant also complains of the proceedings on his request for asylum.

Article 5 of the Convention, insofar as relevant, reads 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.”

The Court notes that the applicant was detained “with a view to deportation” within the meaning of Article 5 § 1 (f) of the Convention. The Court recalls that this provision does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c) of the Convention. Indeed, all that is required under Article 5 § 1 (f) is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law. However, any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (Chahal v. United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, pp. 1862-1863, §§ 112-113).

It must therefore be determined whether the duration of the expulsion proceedings in the applicant's case was excessive. The Court notes that the applicant was placed in aliens' detention from 28 October 1998 until his release on 13 July 1999.

The Court further notes that the applicant's request for asylum of 29 October 1998 was determined by the State Secretary of Justice on 20 November 1998 and his request for an injunction on his expulsion pending the proceedings on appeal was examined and granted by the President of the Hague Regional Court on 30 June 1999, which decision was notified to the parties on 5 July 1999. The Court finally notes that the State Secretary has withdrawn the decision of 20 November 1998.

Having regard to the issue that had to be determined in the asylum proceedings, i.e. whether the applicant had a well-founded fear of persecution within the meaning of the Geneva Convention Relating to the Status of Refugees, the Court considers that it is neither in the interests of the individual applicant nor in the general public interest in the administration of justice that such decisions be taken hastily, without due regard to all the relevant issues and evidence. Against this background and bearing in mind what was at stake for the applicant and the interest that he had in his claims being thoroughly examined by the domestic authorities, the total duration of these asylum proceedings cannot be regarded as excessive for the purposes of Article 5 § 1 (f) of the Convention.

As to the question whether the applicant's placement in aliens' detention pending these proceedings was lawful for the purposes of Article 5 § 1 (f) of the Convention, the Court recalls that where the lawfulness of detention is at issue, including the question whether a “procedure prescribed by law” has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (Chahal v. United Kingdom judgment, loc. cit., § 118).

The Court observes that, in its decision of 8 December 1998, the Hague Regional Court held that the applicant's placement in aliens' detention was lawful under the relevant statutory provisions and that there were sufficient grounds to justify depriving the applicant of his liberty. Noting the reasons stated in this decision for this finding, the Court cannot consider this decision to be arbitrary.

The Court further notes that, in its decision of 3 June 1999, the Hague Regional Court also held that the applicant's placement in aliens' detention was lawful under the relevant statutory provisions and that there were sufficient grounds to justify continuing to deprive the applicant of his liberty from 8 December 1998. The Court further finds no indication that, when on 3 June 1999 the Regional Court examined the applicant's appeal against his placement in aliens' detention, the applicant had made the court aware of the existence of the warrant for his arrest on the basis of which the President of the Regional Court, on 30 June 1999, granted the applicant's request for an injunction on his expulsion. In these circumstances and having regard to the reasons stated in the Regional Court's decision of 3 June 1999, the Court is of the opinion that also this decision cannot be considered as arbitrary.

The Court further observes that, since this decision, the applicant has not sought to challenge the lawfulness of his placement in aliens' detention under Dutch law before the Hague Regional Court – a possibility which, under the relevant provisions of the Alien Act law, was open to him. The question whether or not the applicant's placement in aliens' detention continued to be lawful between 3 June 1999 and 13 July 1999, has therefore not been submitted to or determined by the competent domestic court. The Court is therefore of the opinion that, as regards this period, the applicant has failed to exhaust the domestic remedies that were available to him under Dutch law.

Insofar as the applicant relies on Article 5 § 4 of the Convention, the Court observes that, following the notification of the Minister of Justice of 24 November 1998, the lawfulness of the applicant's placement in aliens' detention was determined by the Regional Court on 8 December 1998 and the applicant's appeal filed on 23 April 1999 was determined on 3 June 1999. The Court cannot find that the duration of these proceedings fell short of the requirement of “speedily” set out in Article 5 § 4 of the Convention. Furthermore, noting the possibility under the Aliens Act of challenging the lawfulness of a placement in aliens' detention before the Regional Court at any point in time, the Court finds no indication that the applicant's rights under Article 5 § 4 of the Convention have been disrespected.

Insofar as the applicant relies on Article 5 § 5 of the Convention, the Court notes that this provision guarantees an enforceable right to compensation only to those who have been the victim of arrest or detention contrary to Article 5 of the Convention. In the absence of any such finding in the present case, the Court is of the opinion that no issues arise under this provision of the Convention.

The Court finally considers that the applicant's complaints about procedural aspects of the proceedings on his request for asylum do not raise any issues under Article 5 of the Convention.

It follows that the application must be rejected under Article 35 §§ 1 and 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Elisabeth Palm Registrar President