FOURTH SECTION

DECISION

Application no. 46534/14 Sadik ABOUBAKER against the Netherlands

The European Court of Human Rights (Fourth Section), sitting on 18 October 2022 as a Committee composed of:

Armen Harutyunyan , President,

Jolien Schukking ,

Ana Maria Guerra Martins , judges,

and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 46534/14) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 June 2014 by Mr Sadik Aboubaker (“the applicant”), who was born in 1963 and who was represented by Mr M.B.J. Strooij , a lawyer practising in Amsterdam;

the decision to give notice of the complaints concerning Articles 5 and 13 of the Convention to the Government of the Kingdom of the Netherlands (“the Government”), represented by their Agent, Ms B. Koopman, and Deputy Agent, Ms K. Adhin, both of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present case concerns immigration detention.

2. On 5 March 2013 the Deputy Minister of Security and Justice ordered the applicant’s placement in immigration detention with a view to his expulsion. By judgment of 20 March 2013 the Regional Court of The Hague sitting in Amsterdam upheld the detention order and by judgment of 26 September 2013 it dismissed the applicant’s appeal against the continuation of his detention. The applicant did not appeal to the Administrative Jurisdiction Division of the Council of State (“the Administrative Jurisdiction Division”). On 17 January 2014, the Deputy Minister lifted the detention order.

3. The applicant complained that the immigration detention had not been justified given the absence of a realistic prospect of his expulsion. He further alleged that recourse to the Regional Court was ineffective. He relied on Article 5 § 1 (f) and Article 13 of the Convention.

4 . In their observations the Government noted that the applicant had not availed himself of the opportunity to appeal against the Regional Court’s judgments of 20 March 2013 and 26 September 2013. Therefore, the highest competent court, the Administrative Jurisdiction Division, had not had a chance to rule on the complaints raised by the applicant. As to the lawfulness of the detention, the Government pointed out that an appeal to the Administrative Jurisdiction Division could result in release and compensation, as was confirmed by the practice of that court. The Government cited the judgments of 2 April 2021 (ECLI:NL:RVS:2021:695) and 17 September 2021 (ECLI:NL:RVS:2021:2092) as examples. The Government submitted that the application should therefore be rejected as inadmissible because the applicant had not exhausted domestic remedies.

5. The applicant did not respond to the Government’s admissibility plea.

THE COURT’S ASSESSMENT

6. From the domestic legal framework set out in section 94 and section 95(1) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ) it follows that the applicant could have appealed against the Regional Court’s judgments of 20 March 2013 and 26 September 2013. The Administrative Jurisdiction Division would be empowered to order the applicant’s release and to award compensation for the period of his detention which was found to be unlawful under section 106 of the Aliens Act 2000. The availability in practice of these remedies is substantiated by the domestic case-law cited by the Government (see paragraph 4 above). Furthermore, an appeal to the Administrative Jurisdiction Division would allow the Regional Court’s review to be challenged, as is also reflected in the case-law cited. The Court finds therefore that the existence of an effective remedy for the applicant’s complaints at the domestic level has been sufficiently established.

7. It thus fell to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him from the requirement to exhaust domestic remedies (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 205, 22 December 2020).

8. The applicant has not disputed that this legal remedy was not used. Neither has the applicant disputed the effectiveness of the review process in the Administrative Jurisdiction Division or otherwise provided reasons for not making use of it.

9. The Court does not discern any special reasons exempting the applicant from the requirement to exhaust domestic remedies in accordance with the applicable rules and procedures of domestic law.

10. It follows that the application must be rejected in accordance with Article 35 § 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 November 2022.

Crina Kaufman Armen Harutyunyan Acting Deputy Registrar President