FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49844/99 by Efraym ÇALIŞKAN 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, Efraym Caliskan, is a Turkish national of Kurdish origin , born in 1968 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 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. On 17 February 1999, the applicant was arrested and subsequently detained in police custody ( inverzekeringstelling ) on suspicion of having been involved in the events in the residence of the Greek Ambassador.

The applicant was released from custody on 23 March 1999 after having been served with an indictment to stand trial on charges in relation to the events in the Greek Ambassador's residence. On the same day, he was handed over to the aliens' police ( vreemdelingenpolitie ). He was subsequently placed in aliens' detention for the purposes of expulsion ( vreemdelingenbewaring ) under Article 26 § 1 (a) of the Aliens Act ( Vreemdelingenwet ).

At some unspecified point in time, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. This request was rejected by the State Secretary of Justice ( Staatssecretaris van Justitie ) at an unspecified point in time. The applicant filed an appeal with the Hague Regional Court ( Arrondissementsrechtbank ) against the State Secretary's refusal of his request for asylum. As the applicant 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. The applicant further requested the Hague Regional Court for an injunction on his expulsion pending the appeal proceedings.

In a decision taken on 31 March 1999, the Hague Regional Court rejected an appeal filed by the applicant against his placement in alien's detention.

On 23 April 1999, the applicant filed a second appeal with the Hague Regional Court against his placement in aliens' detention.

On 19 May 1999, the Hague Regional Court rejected the applicant's appeal against the State Secretary's decision to reject his request for asylum. It further rejected the applicant's request for an injunction on his expulsion.

On 26 May 1999, following a hearing held on 25 May 1999, the Hague Regional Court rejected the applicant's second appeal against his placement in aliens' detention. Insofar as relevant, it held:

“The Regional Court considers at the outset that the lawfulness of the measure of placement in aliens' detention has, as such, already been determined in its decision of 31 March 1999. The present appeal concerns the question whether, after a balancing of all interests involved, a further continuation of the placement should reasonably be considered as unjustified.

The Regional Court is of the opinion that it cannot be said that there are no real prospects for expulsion within a reasonable time. On behalf of the it has been submitted that the alien will be presented to the Turkish authorities at short notice, given that his request for an injunction in connection with his request for entry to the Netherlands as a refugee or on humanitarian grounds was rejected on 19 May 1999 and the appeal ... declared ill ‑ founded. The Regional Court sees no reason to find that is proceeding with insufficient diligence. The Regional Court further finds that , pending the alien's presentation to the Turkish authorities, can reasonably adopt the position that the alien's placement in aliens' detention should be maintained.

As to the complaint of the alien's representative that has given undertakings to the effect that the issue of expulsion of Kurds who are being prosecuted for their alleged participation in the occupation of the Greek Ambassador's residence in The Hague will only be addressed once the criminal proceedings have come to an end, the Regional Court considers as follows. It appears neither from the case-file nor the oral submissions in the present case that has made solid and legally binding undertakings as to the expulsion of persons who occupied the Greek Ambassador's residence. Neither can such an undertaking be read into the replies given by to questions of members of the Lower House of Parliament. The Regional Court further does not perceive a need for the alien who has been placed in aliens' detention to be allowed to remain in the Netherlands pending his trial. After his expulsion, the alien may apply for a visa in order to attend his trial, as has been indicated at the hearing by the representative of .

Having regard to the above, the Regional Court considers that the appeal is ill ‑ founded. The placement in aliens' detention will not be lifted. Having regard to Article 34j of the Aliens Act there is no reason to award compensation.”

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 expulsions of Turkish nationals of Kurdish origin. On the same day, the applicant was released from aliens' detention.

On 29 September 2000, the applicant's representative informed the Court that the applicant, following his release on 31 August 1999, had gone to Germany for a family visit. The applicant's representative further stated that the applicant had been apprehended, detained and expelled from Germany to Turkey despite the fact that there were asylum proceedings ongoing in the Netherlands. According to his representative, the applicant was detained in Turkey and tortured for a number of days.

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.

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 given the fact that criminal proceedings against him were pending and that, pursuant to Article 6 §§ 1 and 3 of the Convention, he had a right to attend those proceedings in person. He is therefore of the opinion that his placement in aliens' detention was unlawful and that 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. He further complains that he was placed in provisional aliens' detention, a form of detention which is not provided for in Netherlands legislation on deprivation of liberty.

The applicant further complains that the second appeal filed against his placement in aliens' detention was not decided speedily as required by Article 5 § 4 of the Convention.

THE LAW

The applicant complains that, given his right under Article 6 §§ 1 and 3 of the Convention to attend his trial in person, there were no prospects for his imminent expulsion and that therefore his placement in aliens detention was contrary to his rights under Article 5 §§ 1 (f), 4 and 5 of the Convention. He further complains that his second appeal against his placement in aliens' detention was not decided speedily as required by Article 5 § 4 of the Convention and that he had been placed in provisional aliens' detention, which form of detention is not provided for in Netherlands legislation on deprivation of liberty.

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 23 February 1999 until his release on 31 August 1999.

The Court observes that the final decision on the applicant's request for asylum was taken by the Hague Regional Court on 19 May 1999. The Court further observes that, in its decision of 26 May 1999, the Hague Regional Court noted that the Netherlands authorities intended to present the applicant to the Turkish authorities at short notice with a view to his expulsion.

In these circumstances, the Court cannot find that the duration of these proceedings, insofar as the applicant was detained during those proceedings, was 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 26 May 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 continuing to deprive the applicant of his liberty. Noting the reasons stated in these decisions for this finding, the Court cannot consider these decisions to be arbitrary.

Insofar as the applicant complains that, given his right under Article 6 §§ 1 and 3 of the Convention to attend his trial in the Netherlands in person, there were no real prospects for his expulsion before these proceedings would have ended, the Court notes that the Hague Regional Court rejected this argument on the basis of a submission made on behalf of the State Secretary that it was open for foreign accused to apply for an entry visa in order to attend their trial in the Netherlands.

Noting that this submission has remained undisputed by the applicant, the Court accepts that, in these circumstances, the applicant's rights under Article 6 of the Convention did not affect the prospects of his expulsion.

The Court further observes that, since the decision taken by the Hague Regional Court on 26 May 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 26 May 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 complains that he was placed in provisional aliens' detention, which is not, as such, a measure provided for in Netherlands legislation on deprivation of liberty, the Court finds no indication that this complaint has been raised, either in form or substance, in the domestic proceedings. It follows that, as regards this part of the application, the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

Insofar as the applicant relies on Article 5 § 4 of the Convention, the Court observes that the second appeal against the applicant's placement in aliens' detention was filed on 23 April 1999 and was determined on 26 May 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