FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48784/99 by Azat SOLHAN against the Netherlands

The European Court of Human Rights (First Section) , sitting on 16 January 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , 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 20 May 1999 and registered on 14 June 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national of Kurdish origin, born in 1965 and, at the time of the introduction of the application, 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 12 October 1998, the applicant, his spouse and their two daughters left Turkey for an unspecified destination somewhere in Europe. In the course of their journey, one of the applicant’s daughters died of suffocation in the truck in which they were hiding. The applicant’s spouse and the other daughter returned to Turkey in order to bury the deceased child there. The applicant continued his journey.

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. On 29 October 1998, after a verification of his identity, nationality and residence title, the applicant was placed in aliens’ detention for the purposes of expulsion ( vreemdelingenbewaring ) under Article 26 § 1 (b) and (c) of the Aliens Act  ( Vreemdelingenwet ).

On the same day, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. On 16 November 1998, the applicant – with the assistance of an interpreter – was interviewed by an official of the Ministry of Justice in relation to the grounds for his asylum request.

The applicant stated, inter alia , that as from 1994 he had made propaganda for the pro-Kurdish HADEP party and that as from 1995, being a pharmacist, he had provided the PKK with medicines on a regular basis. His brother, a PKK member since 1989, had been arrested in 1995 and was detained since. Between January 1997 and February 1998, he himself had been arrested several times. After having been kept in detention for short periods, he had been released each time. After the arrest in July 1998 of a PKK member who had had medicines from the applicant’s pharmacy in his possession, the applicant and his family left their home town for İstanbul. During his stay in İstanbul, the applicant learned that his pharmacy had been destroyed by a bomb by the Turkish authorities. The applicant concluded therefrom that the arrested PKK member had given his name to the Turkish authorities.

On 18 November 1998, the State Secretary of Justice ( Staatssecretaris van Justitie ) rejected the applicant’s request for asylum or a residence permit. The State Secretary doubted the veracity of the applicant’s account and in this respect noted, inter alia , that the applicant, who stated he was a pharmacist, could only name four kinds of medicines amongst which aspirin, that he was unable to state the name of the medicine he claimed to use for treatment of his mental condition and that he was unable to state the name of the wholesaler from whom he would have bought medicines for his pharmacy. The State Secretary did not find it established that the applicant would face a real danger of treatment contrary to Article 3 of the Convention if be expelled to Turkey. In accordance with Article 18a of the Aliens Act, the State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers’ centre and that this order was suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than by a departure from the Netherlands.

On 19 November 1998, the legal basis for the applicant’s placement in aliens’ detention was altered from Article 26 § 1 (b) and (c) of the Aliens Act into Article 26 § 1 (a) of this Act. On the same day his expulsion from the Netherlands was ordered.

On 20 November 1998, the applicant filed an appeal with the Administrative Law Division ( Sector Bestuursrecht ) of the Hague Regional Court ( Arrondissementsrechtbank ) sitting in ‘s-Hertogenbosch against the State Secretary’s decision of 18 November 1998. He further requested the Regional Court for an injunction on his expulsion pending the appeal proceedings. As he was 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.

At two unspecified points in time the applicant started a hunger strike in order to obtain access to the asylum procedure for persons not placed in aliens’ detention. His first hunger strike lasted eight days and his second five days.

On 24 November 1998, the State Secretary of Justice sent a notification to the Administrative Law Division of the Hague Regional Court sitting in ‘s-Hertogenbosch that the applicant had been 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.

In its decision of 8 December 1998, following a hearing held on 7 December 1998 in the course of which the applicant was represented by a lawyer, the Regional Court rejected the appeal filed by way of a notification. It considered that the applicant’s arrest and placement in aliens’ detention was 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 considered at the outset 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 opposed (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 any identity papers and did not have sufficient means of existence, 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 of 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 further noted that the injunction request 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 14 April 1999, the applicant and a unspecified number of others placed in aliens’ detention started a third hunger strike in order to obtain access to the asylum procedure for persons not placed in aliens’ detention. He claims that during this hunger strike, that lasted until 7 May 1999, he was denied recreational rights that other persons placed in aliens’ detention enjoyed, such as access to the library. He further claims that he was not allowed to buy a telephone card or cigarettes and that medical care was hardly provided. Also, after he had ceased his hunger strike, no medical care was provided although he did complain of pain.

On 20 April 1999, following a hearing held on 26 February 1999 in the course of which the applicant was represented by a lawyer, the President of the Regional Court rejected the applicant’s appeal. The President held that, although the general (human rights) situation in (in particular south-east) Turkey could be called bad, the mere belonging to the Kurdish community in Turkey is not sufficient for a finding of persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees. The President found that it had not been established that the applicant had founded reasons to fear persecution within the meaning of the 1951 Convention.

The President further considered that the fact that the applicant has only applied for asylum following his arrest did cast doubts as to the reliability of his statements. The President noted that the applicant, who alleged to be a pharmacist, could only name four kinds of medicine and was unable to state the name of the wholesaler in İstanbul from whom he would have bought medicines. The President further considered as implausible the applicant’s claim that pharmacists in Turkey do not necessarily have to be professionally qualified. Since the applicant had failed to substantiate his account with any documents, the President held that the above seriously undermined the credibility of the applicant’s account.

The President noted that the applicant’s activities for HADEP were only of a marginal nature and that the applicant had stated that his various arrests were not linked to his brother’s activities for the PKK but were based on his own activities for the PKK. Further noting that, shortly after each arrest, the applicant had been unconditionally released, the President held that there was no indication that the applicant was being considered by the Turkish authorities as an important political opponent. The President further did not find it plausible that the Turkish authorities would consider the fact that the applicant had provided the PKK with medicines as a political act, since a pharmacist always runs the risk that medicines are being provided to PKK members. The President further found no causal link between the bomb attack on the applicant’s pharmacy and his activities for the PKK and considered that it was more plausible that this was linked to the general security situation in south-east Turkey.

The President also noted that the alleged events had not given the applicant cause to leave Turkey immediately as he had remained in İstanbul until 12 October 1998 without having encountered any problems from the side of the Turkish authorities. As to information contained in a letter of 8 April 1999 from the Kurdish Human Rights Project in London to the effect that the applicant was an active supporter of HADEP, that the Turkish authorities were aware of these activities and that it was extremely likely that the applicant, if returned to Turkey, would be arrested and detained with a very high risk of being ill-treated and/or tortured during his detention, the President held that this information could not be considered as coming from an objective source. The President concluded that it had not been established that the applicant, if expelled to Turkey, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. In these circumstances, the President did not find it necessary to determine the applicant’s request for an injunction on his expulsion.

On 12 May 1999 the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds. On 17 May 1999 the applicant was interviewed by an official of the Ministry of Justice in respect of his second asylum request. According to the written record of this interview, the applicant stated that he could understand the assisting interpreter very well, that he had no new facts or circumstances to adduce in support of his new asylum request and that he had filed this new request upon the advice of his new lawyer who considered that the written record of the applicant’s interview held on 16 November 1998 did not correctly reflect the applicant’s account.

By letter of 13 May 1999, the applicant’s new lawyer sent comments on the written record of the applicant’s interview held on 16 November 1998 to the State Secretary of Justice. In this letter a number of examples were given of discrepancies between what the applicant had allegedly said and what had been recorded. According to the applicant’s lawyer, these discrepancies were the result of inadequate interpretation. On 18 May 1999, the applicant’s new lawyer submitted comments to the written record of the interview held on 17 May 1999.

By letters of 20 May 1999, the applicant’s lawyer filed complaints with the Minister of Justice and the National Ombudsman about the asylum proceedings conducted in the applicant’s case. In these letters, the applicant’s lawyer complained in particular about the quality of interpretation during the applicant’s interviews in relation to his two asylum requests in that this interpreter was allegedly unable to communicate adequately in either Turkish or Kurdish.

On 3 June 1999 the State Secretary of Justice rejected the applicant’s second request for asylum or a residence permit. The State Secretary noted that the comments submitted on 13 and 18 May 1999 related to the first asylum proceedings and could not be regarded as new relevant facts and circumstances. In this respect, the State Secretary noted that the applicant’s initial lawyer had already addressed the contents of the record on the interview held on 16 November 1998 and had raised the same points as the ones that were now being raised by the applicant’s new lawyer in relation to this interview. These subject matters had been examined both in the proceedings on the applicant’s first request for asylum and in the proceedings on the lawfulness of the applicant’s placement in aliens’ detention. The applicant’s new asylum request was, therefore, inadmissible.

The State Secretary of Justice further held that no facts or circumstances had appeared on the basis of which the applicant would qualify for a residence permit on humanitarian grounds and that it had not been established that there was a real risk that the applicant, if returned to his country of origin, will be subjected to treatment contrary to Article 3 of the Convention. Having found no reasons on grounds of which the applicant should be given the possibility to await the outcome of a possible appeal in the Netherlands, the State Secretary considered that the applicant should leave the Netherlands as soon as possible. The State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers centre and that this order was suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than by a departure from the Netherlands.

The applicant’s expulsion to Turkey was scheduled for 11 June 1999. No information has been submitted as to whether he has in fact been deported on this or any subsequent date.

B. Relevant domestic law and practice

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

“1. Where the interests of public order, public peace or of national security so require, the following persons can be placed in aliens’ detention:

a. alien whose expulsion has been ordered;

b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered;

c. aliens who are not entitled to residency in the Netherlands under Articles 8-10 , pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugee.

2. Placement in aliens’ detention will not be ordered  when - and will be terminated as soon as - the alien indicates that he wants to leave the Netherlands and has the possibility to do so.

3. A placement in aliens’ detention under the first paragraph under b. or c. shall in no case exceed four weeks.”

An alien who does not have any identity papers and 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 lifted.

According to Dutch case-law, 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, it is feasible that this point in time is attained at an earlier or later point in time than after six months have passed. It can be later where the alien frustrates the determination of his identity or nationality and it can be sooner 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 limitation of the freedom of movement or deprivation of liberty shall, for the purposes of Article 8:1 § 1 of the Administrative Law Act, be considered as being on a par with a decision.

2. The court shall examine a first appeal against a decision to the effect of deprivation of liberty within two weeks, either during the preliminary examination under Article 8:44 § 1 of the Administrative Law Act or during a court hearing.

3. If the appeal is directed against a decision as referred to in the second paragraph, the court shall determine the time of the trial proceedings without delay and in any event not later than two weeks after the day of transmission of the appeal. In deviation of Article 8:42 § 2 of the Administrative Law Act, the delay referred to in that Article cannot be prolonged.

4. The Regional Court hands down its written decision, unless immediately at the court hearing a decision is handed down orally, within two weeks following the closure of the investigation . As a deviation of Article 8:66, second paragraph, of the General Administrative Law Act, the delay referred to in that provision cannot be extended.

5. Where the court finds that the applicant or execution of the measure is contrary to the law or after weighing the interests involved cannot in all reasonability be regarded as justified, it declares the appeal under this provision founded and orders that the measure be lifted or a change in the manner of its 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 filing an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention can 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

1. The applicant complains that, in view of his personal circumstances, his expulsion is contrary to his rights under Article 3 and under Article 2 of the Convention and Protocol No. 6.

2. The applicant complains under Article 3 of the Convention of his treatment in detention while he was on a hunger strike. He claims that during his first and third hunger strike he was isolated from other detainees, that during his first hunger strike the heating in his cell was closed off, that during his last hunger strike he was denied recreational rights like access to the library, that he was not allowed to buy a telephone card or cigarettes. He further complains that he was provided with a cup of tea with less and less sugar only a few times per day and that medical care was hardly provided. Also after he ceased his hunger strike, no medical care was provided although he did complain of pain.

3. The applicant complains that his detention for the purpose of his expulsion from the Netherlands is contrary to his rights under Article 5 §§ 1 (f), 4 and 5 of the Convention. He submits that the final judicial decision on his first asylum request was taken when he had been deprived of his liberty for already nearly six months. He argues that there were no real prospects for his imminent expulsion during these proceedings and that therefore his placement in aliens’ detention was unlawful.

4. The applicant further complains that he was arrested and taken into detention within two hours after his arrival in the Netherlands. He was denied assistance by a lawyer or other advisors until he was notified of the rejection of his asylum request. He could not be prepared for his interview with the official of the Ministry of Justice in relation to his asylum request and the record of this interview was drafted in a language he did not understand. He also complains that the refusal of his asylum request is partially based on incorrect interpretation and incorrect recording of information given by him. As he was detained, he was also denied the possibility of first filing an objection ( bezwaarschrift ) with the State Secretary against the latter’s decision of 18 November 1998 before submitting his case to the Regional Court and that, due to his detention, he was deprived of the possibility to gather relevant information from other sources. According to the applicant, these elements are contrary to his rights under Article 3 both in itself and in conjunction with Articles 13 and 14 of the Convention.

THE LAW

1. The applicant complains under that, in view of his personal circumstances, his expulsion is contrary to his rights under Article 3 as well as contrary to his rights under Article 2 of the Convention, which guarantees the right to life, and Protocol No. 6 to the Convention, which prohibits capital punishment.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens. Moreover, neither Article 3 of the Convention nor any other provision of the Convention guarantees the right of political asylum. However, expulsion by a Contracting Party may give rise to an issue under Article 3 and thus engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see the Chahal v. United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74).

In its assessment of the risk of ill-treatment the Court has considered the following principles to be relevant:

i. In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (cf. Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, § 75).

ii. The assessment of the existence of the risk must be made on the basis of information currently available (Chahal v. the United Kingdom, loc. cit., § 89).

iii. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case. A mere possibility of ill-treatment is not in itself sufficient (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, §§ 107 and 111).

The Court notes that the applicant, who claimed to be a pharmacist, was unable to name more than four kinds of medicine or to state the name of the wholesaler who would have supplied him with medicines, that he has always been released shortly after having been arrested without any further consequences, and that the allegation that his pharmacy would have been destroyed by the Turkish authorities has remained fully unsubstantiated. The Court further notes that it has not appeared that the applicant’s spouse, who has returned to Turkey, has encountered any problems from the side of the Turkish authorities on account on any activities of the applicant.

The Court is of the opinion that the applicant’s submissions concerning his personal situation as well as the general situation of the Kurdish community in Turkey do not disclose that his personal position exposes him, if expelled to Turkey, either to a threat to his life or to a risk of being subjected to treatment contrary to Article 3 of the Convention.

Accordingly, it follows that this part of the application must be rejected under Article 35 § 3 of the Convention as being manifestly ill-founded.

2. The applicant also complains under Article 3 of the Convention of his treatment in detention while he was on a hunger strike.

The Court observes that it has not appeared that the applicant has made any complaints about his treatment in detention before the competent domestic authorities. Moreover, even assuming that the applicant would have complied with the requirements of Article 35 § 1 of the Convention, the Court notes that this part of the application has remained fully unsubstantiated.

It follows that this part of the application must also be rejected under Article 35 § 3 of the Convention as being manifestly ill-founded.

3. The applicant further complains that, given the duration thereof and the lack of prospects for his imminent expulsion pending the proceedings on his asylum request, his detention for the purpose of his expulsion from the Netherlands is contrary to his rights under Article 5 §§ 1 (f), 4 and 5 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, loc. cit., §§ 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 period under consideration started on 29 October 1998 when the applicant was placed in aliens’ detention and, insofar as can be established, lasted until 11 June 1999 when his expulsion was scheduled. The Court notes that the applicant’s first request for asylum of 29 October 1998 was determined by the State Secretary of Justice on 18 November 1998 and the applicant’s appeal against this decision was examined by the Hague Regional Court on 26 February 1999 and determined on 20 April 1999. The applicant’s subsequent fresh asylum request of 12 May 1999 was determined by the State Secretary of Justice on 3 June 1999.

Having regard to the issue that had to be determined in these proceedings, i.e. whether the applicant had well-founded fears of being subjected to persecution within the meaning of the Geneva Convention Relating to the Status of Refugees and/or treatment contrary to Article 3 of the Convention, 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 two sets of proceedings, taken either separately or together, 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 justifying the deprivation of the applicant’s liberty. Noting the reasons stated in this decision for this finding, the Court cannot consider this decision to be 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 after 8 December 1998, in particular after he had spent six months in aliens’ detention, 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. 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.

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

4. The applicant complains that the proceedings on his asylum request are incompatible with his rights under Article 3 both in itself and in conjunction with Article 13 of the Convention. He further complains under Article 14 in conjunction with Article 3 of the Convention that he has been discriminated against in that, contrary to other asylum seekers, he was denied the possibility of first filing an objection with the State Secretary before submitting his case to the Regional Court.

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court observes that the applicant’s request for asylum has been determined following proceedings in the course of which the applicant has been provided with ample opportunity to state his case and to submit whatever he found relevant for the outcome. In these circumstances, the Court has found no indication that the procedure in itself gave rise to an issue under Article 3 or Article 13 of the Convention.

As regards the applicant’s complaint under Article 14 of the Convention that, unlike asylum seekers who are not placed in aliens’ detention, he was not allowed to first file an objection with the State Secretary but had to appeal directly to the Regional Court, it appears that this difference in treatment is based on a deprivation of liberty of the person concerned. In the light of the Court’s case-law that persons deprived of their liberty are entitled to special diligence in proceedings to which they are a party (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 35, § 84), this reason undoubtedly constitutes an objective and reasonable justification for the difference in treatment complained of.

It follows that this part of the application must be rejected under Article 35 § 3 of the Convention as manifestly ill-founded.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President