Information Note on the Court’s case-law 253

July 2021

Bah v. the Netherlands - 35751/20

Decision 22.6.2021 [Section IV]

Article 5

Article 5-4

Take proceedings

Applicant’s impossibility to be heard in immigration detention appeal in person or by tele- or videoconference due to initial infrastructure problems in Covid-19 pandemic: inadmissible

Facts – The applicant, a Guinean national, was placed in immigration de tention on 2 March 2020 with a view to his deportation following the rejection of his asylum application. He lodged an appeal with the Regional Court. However, due to the Covid-19 pandemic lockdown which also entailed the closure of all Dutch courts and th e cancellation of in-person hearings, his appeal, which was considered as urgent, was heard by teleconference through his lawyer.  Despite his express wish to attend in person or by tele- or videoconference this had not been possible at the material time o wing to a lack of adequately equipped tele- and videoconference rooms in the immigration detention centre. His appeal was dismissed as was his further appeal to the Council of State’s Administrative Jurisdiction Division.

Law – Article 5 § 3: This provisi on concerned only one specific form of deprivation of liberty, namely, that referred to in paragraph 1 (c) of Article 5. It was thus not applicable in the present case as the Netherlands authorities had detained the applicant not for the reasons mentioned in that provision but “with a view to deportation” which was a ground set out in paragraph 1 (f) of Article 5.

Article 5 § 4: The applicant’s hearing had been held in the first weeks of the Covid-19 pandemic lockdown, at which time the immigration detentio n centres had been largely unprepared to observe the required 1.5-meter distance in tele- and videoconference rooms and lacked the technical infrastructure. The Regional Court had, however, made concrete efforts to enable the applicant’s presence at his he aring and had explained in detail why it had not been possible to hear him in person or by videoconference. Further, the Administrative Jurisdiction Division had held that in the circumstances of this particular case, limitations of the applicant’s right u nder domestic law to be present at the hearing had been foreseeable, the impugned measures had served the interest of public health and the limitations had been proportionate and had not impinged on the essence of the right in question. Given therefore the difficult and unforeseen practical problems with which the State had been confronted during the first weeks of the Covid-19 pandemic, the fact that the applicant had benefitted from adversarial proceedings during which he had been represented by and heard through his lawyer who had attended the hearing by telephone and with whom he had had regular contact, the importance of the applicant’s other applicable fundamental rights and the general interest of public health, the examination of the detention order without securing his attendance at the hearing in person or by videoconference, had not been incompatible with Article 5 § 4. This provision did not impose the same stringent requirements on hearings as Article 6 under its civil or criminal head.

In conclu sion, the Court found that the applicant had been entitled “to take proceedings” within the meaning of Article 5 § 4 and that in the circumstances of the present case those proceedings met the requirements of that provision. As there was therefore no appea rance of a breach of Article 5 § 4, paragraph 5 of the same provision did not enter into play.

Conclusion : inadmissible (manifestly ill-founded)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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