FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49817/99 by Sadullah POLAT 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, Sadullah Polat, is a Turkish national of Kurdish origin, born in 1972 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 5 January 1999, the applicant and twelve others left Ä°stanbul by truck. The applicant arrived in the Netherlands on 11 January 1999 and, on 12 January 1999, pursued his journey to Germany, where his brother was residing and where he wished to apply for asylum.

On 12 January 1999, the applicant was apprehended by the German authorities and handed over to the Netherlands authorities, who placed him in detention in accordance with Article 19 of the Aliens Act ( Vreemdelingenwet ) in order to verify his identity, nationality and residence title. On the same day, after the applicant had filed a request for asylum or a residence permit on humanitarian grounds, he was subsequently placed in aliens’ detention ( vreemdelingenbewaring ) pending the determination of his asylum request, in accordance with Article 26 § 1 (c) of the Aliens Act.

On 18 January 1999, the applicant filed an appeal with the Hague Regional Court ( Arrondissementsrechtbank ) sitting in ‘s- Hertogenbosch against the measure of his placement in aliens’ detention and requested his immediate release.

On 21 January 1999, the applicant was interviewed by an official of the Ministry of Justice in relation to the grounds for his asylum request.

On 2 February 1999, following a hearing held on 1 February 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the applicant’s appeal against his placement in aliens’ detention. It held that there were sufficient grounds to justify the applicant’s placement in aliens’ detention. In this respect it noted that, at the time of his placement in detention and to date, the applicant did not have a valid residence title, valid identity documents or sufficient means of existence. At the time of his apprehension, the applicant had further been in the possession of a false Turkish identity card and he had only applied for asylum after having been handed over by the German authorities to the Dutch authorities whereas he could have made such an application during his stay in the Netherlands prior to his departure to Germany. In these circumstances, the Hague Regional Court held that there were sufficient grounds to conclude that there were reasons to believe that the applicant would seek to find ways of avoiding his expulsion and that therefore he had rightly not been transferred to an ordinary asylum seekers centre.

The Regional Court further held that the fact that the applicant had applied for asylum did not imply that there were no longer any prospects for his expulsion. This would only be the case if it was highly likely that his request for asylum would be granted. However, this did not appear to be the case. Noting that the applicant had been heard in relation with his request for asylum on 21 January 1999, that the court had been informed that a decision was expected at short notice and that, pursuant to Article 26 § 3 of the Aliens Act, a placement in aliens’ detention ends where a request for asylum is not decided upon within four weeks, the Hague Regional Court found that there were as yet realistic prospects for the applicant’s expulsion and that the authorities were sufficiently diligent in their activities aimed at his expulsion. The Hague Regional Court concluded that the applicant’s placement in aliens’ detention was in accordance with the relevant statutory provisions and, after having weighed all interests involved, could reasonably be regarded as justified.

On 4 February 1999, the State Secretary of Justice ( Staatssecretaris van Justitie ) rejected the applicant’s request for asylum or a residence permit on humanitarian grounds and ordered his expulsion from the Netherlands. The applicant was, consequently, placed in aliens’ detention for the purposes of his expulsion in accordance with Article 26 § 1 (a) of the Aliens Act.

At some unspecified point in time, the applicant filed an appeal against the decision of 4 February 1999 with the Hague Regional Court sitting in ‘s- Hertogenbosch . He further applied to 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 5 February 1999, the applicant filed a second appeal with the Hague Regional Court sitting in ‘s- Hertogenbosch against the measure of his placement in aliens’ detention and he requested that he be released immediately.

On 23 February 1999, following a hearing held on 22 February 1999 in the course of which the applicant was represented by a lawyer, the Hague Regional Court rejected the applicant’s second appeal against his placement in aliens’ detention. Noting that the lawfulness of this placement had already been determined in its decision of 2 February 1999, it limited its examination to the lawfulness of the applicant’s continued placement in aliens’ detention.

It held that the fact that the applicant had applied for an injunction on his expulsion did not, as such, affect the lawfulness of his placement in aliens’ detention, since – pending the determination of this request – it could not be said that there were no prospects for his expulsion. This would only be the case where it was highly likely that an injunction would be granted. This had, however, not appeared to be the case.

Noting that the State Secretary had requested the Hague Regional Court on 9 February 1999 to give priority to the applicant’s request for an injunction, the Regional Court stated on this point that it assumed that the request for an injunction would be dealt with in the near future. Noting further that the question whether the applicant could be expelled to Turkey with a second Turkish identity card submitted by him was in the process of being examined, the Regional Court held that there remained realistic prospects for the applicant’s expulsion and considered that it could not be held that the authorities were insufficiently diligent in their activities aimed at the applicant’s expulsion. The Hague Regional Court concluded that the applicant’s placement in aliens’ detention was in accordance with the relevant statutory provisions and, after having weighed all interests involved, could reasonably be regarded as justified.

On 13 October 2000 and without providing further details, the applicant informed the Court that his request for asylum had been unsuccessful and that, on 31 August 1999, he had been released from aliens’ detention on the basis of a temporary suspension of the expulsion of Turkish nationals of Kurdish origin.

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 the Hague Regional Court. Where the Hague Regional Court finds 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.

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.

COMPLAINTS

The applicant complains that his detention as from 12 January 1999 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.

The applicant further complains under Article 5 §§ 1 (f), 4 and 5 of the Convention that the Hague Regional Court twice rejected his request for compensation for the time spent in aliens’ detention.

THE LAW

The applicant complains that, given the lack of prospects of his imminent expulsion, his 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 under the same provisions of Article 5 of the Convention that the Hague Regional Court twice rejected his request for compensation for the time he had spent in aliens’ detention.

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 him 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 12 January 1999 until his release on 31 August 1999.

The Court further notes that the applicant’s request for asylum, filed on or about 12 January 1999, was determined by the State Secretary of Justice on 4 February 1999. It further notes that the State Secretary had requested the Regional Court to give priority to the examination of the applicant’s request for an injunction on his expulsion pending the proceedings on the appeal which the applicant had filed with the Hague Regional Court against the decision of 4 February 1999. Insofar as can be established on the basis of the applicant’s submissions in respect of the proceedings on his request for asylum, the Court finds no indication that the Netherlands authorities failed to proceed with due diligence for the purposes of Article 5 § 1 (f) of the Convention.

The Court further 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 2 and 23 February 1999 respectively, 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 justifying the deprivation of the applicant’s 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 of 23 February 1999, it does not appear that the applicant has 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 23 February 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 the applicant’s first appeal against his placement in aliens’ detention was filed on 18 January 1999 and that it was determined by the Hague Regional Court on 2 February 1999. His second appeal of 5 February 1999 was determined by the Hague Regional Court on 23 February 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 were disrespected.

Insofar as the applicant relies on Article 5 § 5 of the Convention, the Court notes in the first place that it does not appear from the applicant’s submissions that, in his two appeals against his placement in aliens’ detention, he did in fact make a request for compensation. However, even assuming that his appeals did contain a request to this effect, 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 considers that no issues arise under this provision 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