FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49832/99 by S. D . 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 26 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, S . D . , is a Turkish national of Kurdish origin , born in 1978 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.

In 1994, the applicant left Turkey for Germany, allegedly after having been apprehended and released by the Turkish authorities in connection with his activities for the PKK youth movement. The applicant remained in Germany until, at some unspecified point in time in 1997, he travelled to the Netherlands. After having been apprehended in the Netherlands, he was removed to Germany on 2 January 1998 as he held a valid residence permit for this country. On 6 January 1998, the applicant returned voluntarily to Turkey.

Two weeks after his arrival in his hometown in Turkey, the applicant was apprehended by the police and questioned about his past whereabouts. He was released after 22 days. About five months later, he was apprehended for a second time. He was released after 31 days. The applicant remained in his hometown until his departure for the Netherlands on 9 January 1999, where he arrived after a two week journey.

On 16 February 1999, following the apprehension of the Kurdish leader Abdullah Öcalan by the Turkish authorities, a protest demonstration took place in The Hague in the course of which protesters occupied the residence of the Greek Ambassador and members of the Ambassador ’ s household were prevented from leaving the premises. That day, the applicant, together with numerous others, was arrested. The applicant was subsequently detained in police custody ( inverzekeringstelling ) on suspicion of (being an accessory to) the offence of unlawfully depriving a person of his liberty.

On 20 February 1999, the applicant was heard on the suspicions against him and was subsequently served with an indictment to stand trial on 13 September 1999 on charges of, inter alia , having deprived one or more internationally protected persons of their liberty, trespassing and vandalism.

Later that day and upon instructions of the public prosecutor, the applicant was released from police custody and handed over to the aliens ’ police ( vreemdelingenpolitie ) for the purposes of his expulsion as it had appeared that he was an illegal alien. The aliens ’ police apprehended the applicant in accordance with Article 19 of the Aliens Act ( Vreemdelingenwet ) in order to verify his identity, nationality and residence title and, subsequently, placed him in aliens ’ detention for the purposes of expulsion ( vreemdelingenbewaring ) under Article 26 § 1 (a) of the Aliens Act ( Vreemdelingenwet ).

Also on 20 February 1999, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds and, on 25 February 1999, he was interviewed by an official on the reasons for these requests.

On 17 March 1999 the State Secretary of Justice ( Staatssecretaris van Justitie ) declared the applicant ’ s request for asylum inadmissible in accordance with Article 15b § 1 (f) of the Aliens Act as the applicant had not filed his request without delay upon his arrival in the Netherlands in January 1999. The State Secretary further held that, even assuming that the request had been admissible, it would have been rejected as manifestly ill-founded. In this respect, the State Secretary held that the fact that the applicant had not applied for asylum without delay upon his arrival in the Netherlands in January 1999 cast doubts on the sincerity of his motives for applying for asylum.

The State Secretary did not find it established that the applicant had attracted the negative attention of the Turkish authorities given that, after his voluntary return to Turkey, he had twice been arrested and released unconditionally and had remained in Turkey for a further five months after his second release. Insofar as the applicant argued that he was wanted by the Turkish authorities for failure to perform his military service, the State Secretary noted that the applicant had been unable to submit a summons to report for military service. The State Secretary further noted that the applicant had voluntarily returned to Turkey in 1998, which militated against the applicant ’ s having fled that country in order to evade the military service. He had, moreover, not submitted any reasons for not wanting to do his military service. The State Secretary further found no indication that the applicant, if expelled to Turkey, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention

The applicant was ordered to leave the Netherlands without delay and, also on 17 March 1999, the State Secretary issued an order for the applicant ’ s expulsion.

On 18 March 1999, the State Secretary of Justice sent a notification to the Hague Regional Court ( Arrondissementsrechtbank ) sitting in Haarlem 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 19 March 1999, the applicant filed an appeal with the Hague Regional Court against the State Secretary ’ s decision of 17 March 1999. As he had been placed in aliens ’ detention he was not required, like asylum seekers not placed in aliens ’ detention, first to file an objection ( bezwaarschrift ) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. The applicant further requested the Hague Regional Court to issue an injunction on his expulsion pending the appeal proceedings.

On 8 April 1999, following a hearing held on 25 March 1999, the Hague Regional Court sitting in Nieuwersluis rejected the appeal against the applicant ’ s placement in aliens ’ detention that had been filed on 18 March 1999 by way of a notification. It rejected the applicant ’ s arguments that his detention in police custody had been unlawful and that the public prosecutor had not given his consent to the applicant ’ s expulsion. It considered that this consent appeared from the public prosecutor ’ s decision to hand the applicant over to the aliens ’ police for expulsion purposes. In the light of this decision and the decision of the State Secretary to order the applicant ’ s expulsion, the Hague Regional Court rejected the applicant ’ s argument that there were no prospects for his expulsion.

It further held that this was not altered by the fact that the applicant was awaiting the outcome of his appeal against the State Secretary ’ s decision of 17 March 1999. The applicant ’ s placement in alien ’ s detention would, according to the Hague Regional Court ’ s constant case-law, only be unlawful if the pending appeal stood clear chances of success, which it considered not to be the case. The Hague Regional Court further noted that the State Secretary had requested the Hague Regional Court to consider the applicant ’ s appeal and request for an injunction on his expulsion with priority. The Hague Regional Court concluded that the applicant ’ s placement in aliens ’ detention was in accordance with the Aliens Act and that, after having balanced the interests involved, this placement could reasonably be regarded as justified. Consequently, it found no grounds to award the applicant compensation for the time spent in placement in aliens ’ detention.

On 26 May 1999, the applicant filed an appeal with the Hague Regional Court sitting in Nieuwersluis against his placement in aliens ’ detention as well as a request for compensation for the time spent in placement in aliens ’ detention.

On 15 July 1999, following a hearing held on 8 July 1999, the Hague Regional Court rejected this appeal. Insofar as relevant, it held:

“The alien ’ s argument that there are no prospects for expulsion because the appeal proceedings on requests for asylum by Turkish Kurds who, like himself, refuse to perform their military service will only be dealt with after some time, is not accepted. In the court ’ s opinion the (representative of) the alien can – so as to obtain clarity on the request for asylum rapidly – influence the fixing of a hearing date for the examination of the appeal and of the request for an injunction by requesting the Regional Court to give them priority. It has not appeared that the (representative of the) alien has filed such a request or that such a request would not have been determined at short notice, so that it cannot be said that for this reason there are no prospects of expulsion within a reasonable time

Insofar as the alien ’ s representative argues that the continuation of the placement in aliens ’ detention is unlawful, since it is evident that the alien ’ s asylum request will be granted, the court notes the following. With reference to the documents submitted, it does not appear clearly from the submissions made by the alien ’ s representative in the procedure on the alien ’ s residence title that the alien must be granted permission to reside in the Netherlands. In the light of these circumstances a continuation of the imposed measure of placement in aliens ’ detention cannot as yet be held unjustified.

Also in respect of the remainder, the Regional Court is of the opinion that, having regard to the written and oral submissions, the ... placement in aliens ’ detention is not in violation of the Aliens Act and neither, upon a weighing of all interests involved, can it be considered as unjustified.

The appeal is therefore ill-founded.

As the placement in aliens ’ detention is maintained, the request for compensation cannot be granted.”

On 31 August 1999, following a policy decision by the State Secretary to suspend temporarily the expulsion of Turkish nationals of Kurdish origin, the Hague Regional Court ordered the applicant ’ s release from aliens ’ detention. The applicant was released the same day.

On 30 September 1999, the applicant ’ s lawyer was informed that, pending the investigation that was being carried out by the Ministry of Foreign Affairs (see below), the State Secretary would not avail himself of his powers under Article 22 of the Aliens Act to expel the applicant. On the assumption that, in these circumstances, the applicant would withdraw his request to the Hague Regional Court for an injunction on his expulsion, an offer was made to compensate the applicant for his court fees.

On 22 October 1999, the public prosecutor informed the applicant that the criminal charges that had been brought against him had been dropped for lack of sufficient lawful evidence.

In its decision of 16 November 1999, following a hearing held on 1 November 1999, the Hague Regional Court upheld the State Secretary ’ s decision to declare the applicant ’ s request for asylum inadmissible. However, it declared the applicant ’ s appeal for the remainder well-founded, finding, inter alia , that the State Secretary had failed to examine the applicant ’ s arguments relating to his refusal to perform his military service in the light of criteria set out in a decision taken on 12 April 1995 by the Legal Uniformity Division ( Rechtseenheidskamer ) of the Hague Regional Court. Consequently, it quashed the decision of 17 March 1999. The Regional Court did, however, add that this did not necessarily imply that the applicant was eligible for entry to the Netherlands as the State Secretary had been correct to express doubts as to the applicant ’ s account. In this respect it noted that the applicant had voluntarily returned to Turkey on 6 January 1998, i.e. at a time when no final decision on his asylum had yet been taken and whilst he was still holding a valid German residence permit. It considered that it had remained unclear why the applicant had not invoked the protection of the German authorities but had gone to the Netherlands instead. The Hague Regional Court further found it remarkable that, after having been released, the applicant had stayed in his hometown for five months without, according his submissions, having encountered problems worth mentioning.

On 1 May 2000, the Criminal Law Division ( Strafsector ) of the Hague Regional Court rejected the applicant ’ s request under Article 89 of the Code of Criminal Procedure for compensation for the time spent in police custody. It noted that the criminal proceedings against the applicant had ended on 22 October 1999, when the public prosecutor had informed the applicant ’ s lawyer that the criminal charges against the applicant had been dropped. Given the circumstances of the applicant ’ s arrest, it held that there had been a reasonable suspicion that he had been involved in the commission of offences in or around the residence of the Greek Ambassador. Having regard to the fact that about 200 persons had been arrested, all of whom had had to be provided with legal aid and had to be heard – which in most cases required the assistance of an interpreter –, the Regional Court, while recognising that the applicant had had to wait too long before he had been provided with a legal aid lawyer and accepting the unsatisfactory nature of this situation, held that in the specific circumstances this delay could not be held against the State.

No 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 of 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.

Pursuant to Article 34a of the Aliens Act, the Regional Court must examine an appeal brought against a measure of deprivation of liberty within two weeks and must hand down its written decision on the appeal within two weeks following its hearing on the appeal.

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.

On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend until 15 August 1999 its examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, in view of a recent report of one such asylum seeker having encountered serious problems after his expulsion to Turkey. As the veracity of this report was not certain, the Minister of Foreign Affairs had been requested to investigate the matter and to submit his findings as to the origin, background and veracity of the report before 15 August 1999.

On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin.

On 16 December 1999, the State Secretary informed the Dutch Parliament that the results of an investigation into the facts on the basis of which the expulsion of Turkish nationals of Kurdish origin had been temporarily suspended had led to the lifting of that suspension.

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 more so since – in its decision taken in a similar case – the Hague Regional Court sitting in Zwolle had declared the placement in aliens ’ detention of a Mr K. unlawful and had awarded him compensation.

The applicant further complains that the appeal filed by way of a notification in relation to his placement in aliens ’ detention was not decided speedily as required by Article 5 § 4 of the Convention. He submits that the notification was filed on 18 March 1999, was examined in a hearing held on 25 March 1999 and was only decided on 8 April 1999.

THE LAW

The applicant complains that, given the duration of his detention and the lack of prospects for 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. He further complains that the appeal against his placement in aliens ’ detention filed by way of a notification was not decided speedily as required under Article 5 § 4 of the Convention.

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 20 February 1999 until his release on 31 August 1999.

The Court observes that the applicant ’ s request for asylum of 20 February 1999 was determined by the State Secretary of Justice on 17 March 1999 and that, after the applicant had been released from detention on 31 August 1999, the applicant was informed on 30 September 1999 on behalf of the State Secretary that the latter would not seek to expel him.

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 duration of these asylum proceedings, insofar as the applicant was detained during those 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 decisions of 8 April 1999 and 15 July 1999, 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 these decisions for this finding, the Court cannot consider these decisions to be arbitrary.

The Court further observes that, since the decision taken by the Hague Regional Court on 15 July 1999, it does not appear that the applicant has sought to challenge the lawfulness of his continued 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 15 July 1999 and 31 August 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 filing on 18 March 1999 of an appeal against the applicant ’ s placement in aliens ’ detention by way of a notification, the lawfulness of his applicant ’ s placement in aliens ’ detention was determined by the Hague Regional Court on 8 April 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 victims 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. Insofar as, on this point, the applicant relies on a decision taken by the Hague Regional Court sitting in Zwolle in the case of a Mr K., the Court notes that this argument has remained fully unsubstantiated.

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