THIRD SECTION

Applications nos 50108/11 and 10642/13 Brahim SELIMANI against the Netherlands and Gedun GYATSO against the Netherlands lodged on 3 August 2011 and 14 December 2012 respectively

STATEMENT OF FACTS

A. The circumstances of the case

1. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Application no. 50108/11

2. The applicant, Mr Brahim Selimani , was born in 1974 and lives in Amsterdam. He claims that he is of Algerian nationality. He is represented before the Court by Ms F. Verkerk , a lawyer practising in Amsterdam.

3. On 10 January 2011 the applicant was placed in aliens ’ detention pursuant to section 59(1)(a) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ) (see below).

4. On 11 January 2011 the applicant lodged an appeal ( beroep ) against his placement in aliens ’ detention. He also requested compensation to be awarded to him pursuant to section 106 of the Aliens Act 2000.

5. On 21 January 2011 the Regional Court ( rechtbank ) of The Hague, sitting in Amsterdam, gave a decision holding that the appeal was unfounded and dismissing the request for compensation. It held that even though it followed from the case-law of the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) that currently there was no prospect of expulsion to Algeria, it was not established that the applicant actually held Algerian nationality; consequently, it could not be found that in his case a real prospect of expulsion was lacking.

6. On 28 January 2011 the applicant lodged a further appeal ( hoger beroep ) against the decision of the Regional Court with the Administrative Jurisdiction Division. He argued, inter alia , that there was no real prospect of his expulsion within a reasonable time.

7. In its decision of 1 March 2011 the Administrative Jurisdiction Division held that the Minister for Immigration, Integration and Asylum Policy ( minister voor Immigratie , Integratie en Asiel ; “the Minister”) had failed to specify the indications which had given rise to doubts concerning the applicant ’ s nationality or to examine any possibilities of expulsion other than to Algeria. That being so, it had, in the proceedings before the Administrative Jurisdiction Division, to be presumed that the applicant held Algerian nationality. Referring to its previous case-law, the Administrative Jurisdiction Division further held that there was currently no reasonable expectation of it being possible for Algerian aliens to be expelled to Algeria with a laissez-passer provided for that purpose by the Algerian authorities. Furthermore, it did not appear that there were special circumstances in the applicant ’ s case such as would render his expulsion to Algeria possible. No meaning could be attributed to the fact that he had refused to comply with the duty to cooperate in his expulsion since, even if the applicant had cooperated, this fact could in the present situation not have led to his expulsion within a reasonable time. The Administrative Jurisdiction Division therefore concluded:

“2.2. ... The contested decision is to be quashed. ... Doing what the Regional Court ought to have done, the Division will uphold the [applicant ’ s] appeal against the Minister ’ s decision of 10 January 2011 [to place him in aliens ’ detention]. The custodial measure ( vrijheidsontnemende maatregel ) will have to be lifted.”

8. As regards the applicant ’ s claim for compensation, the Administrative Jurisdiction Division held as follows:

“2.3. Pursuant to section 106(1) of the Aliens Act 2000, in so far as relevant, the Regional Court may award the applicant compensation at State expense, if it orders the lifting of a custodial measure. Article 90 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) [see below] applies by analogy.

Pursuant to paragraph 1 of the last-mentioned provision compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so.

2.3.1. It has been established by decision of 19 September 2000, served [on the applicant] on 13 October 2000, that an exclusion order was imposed [on the applicant] ( ongewenst is verklaard ), that he therefore cannot legally stay in this country and that also in other respects he is under a legal obligation to leave the Netherlands. This legal obligation includes, among other things, the duty to cooperate fully with every attempt of the Minister to effectuate his expulsion to his country of origin or any other country where his admission is guaranteed. [The applicant] has returned to the Netherlands each time after he was expelled on 10 December 1991 and 27 May 1992 and he has not left the Netherlands since. [The applicant] has thus knowingly chosen to continue his long-term illegal residence in this country, thereby accepting the attendant risk of being returned to detention. In the course of the further appeal proceedings he has not denied that he refuses to cooperate in his expulsion. The fact that the lack of such cooperation cannot at present lead to a situation in which [his] expulsion to Algeria within a reasonable time is possible does not alter the fact that also in such a situation [the applicant] remains obliged to provide the cooperation that may be expected of him in the Minister ’ s efforts to effect his expulsion. In the present circumstances there are grounds to reduce the compensation to nil.”

2. Application no. 10642/13

9. The applicant, Mr Gedun Gyatso , is a Chinese national, who was born in 1980 and lives in Amsterdam. He is represented before the Court by Ms H.H.R. Bruggeman , a lawyer practising in Lisse .

10. On 10 January 2008 the applicant applied for asylum in the Netherlands. He had arrived in the Netherlands with an Indian Identity Certificate which held a “No Objection to Return to India” stamp. Even though the applicant stated that he had bought the Certificate, the Netherlands authorities found that it was virtually certain that the document was “real”.

11. On 2 March 2009 the immigration authorities rejected the applicant ’ s request for asylum pursuant to section 31(2)(i) of the Aliens Act 2000 because he could return to India, the country of his previous residence, where he would be admitted until he had found permanent protection somewhere else.

12. On 11 May 2011 the applicant lodged a repeat request for asylum. On 19 May 2011 this request was met with a negative decision pursuant to section 4:6 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), which provides that a repeat request must be based on newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ) warranting a revision of the initial decision taken.

13. On 20 May 2011 the applicant was placed in aliens ’ detention pursuant to section 59(1)(a) of the Aliens Act 2000.

14. On 25 May 2011 the applicant lodged an appeal to the Regional Court against his placement in aliens ’ detention. He also requested compensation to be awarded to him pursuant to section 106 of the Aliens Act 2000 for the alleged unlawful detention.

15. On 26 May 2011 the applicant informed the authorities that he had lost his Indian Identity Certificate.

16. On 6 June 2011 the applicant refused to fill out applications for a Chinese or Indian laissez-passer . He was then informed that these applications would be filled out by the authorities, on the basis of the available information.

17. On 10 August 2011 applicant was presented at the Indian embassy. Subsequently, the Indian authorities informed the Netherlands authorities that the applicant first needed to submit an official report of the loss of his Indian Identity Certificate before they could examine his application for a laissez-passer . The applicant reported the loss of the document on 12 August 2011.

18. The applicant ’ s appeals against his (continuing) detention were dismissed on 16 June, 24 August, 27 October and 27 December 2011, and 7 February and 4 April 2012, respectively. In each of these decisions the Regional Court found that there was a prospect of the applicant ’ s expulsion to India since the Indian authorities were still examining the application for a laissez-passer .

19. It appears that on 8 May 2012 the Netherlands authorities were informed by the Indian authorities that the application for a laissez-passer was complicated and that its examination would take time.

20. On 15 May 2012 the applicant again appealed to the Regional Court against his continuing detention and claimed compensation.

21. On 18 May 2012 the Netherlands authorities presented the applicant ’ s case to the British authorities with a view to receiving the latter authorities ’ assistance in obtaining a laissez-passer for the applicant from the Indian authorities.

22. On 6 June 2012 the applicant was released.

23. On 14 June 2012 the Regional Court found that it followed from established case-law that if an alien had spent twelve months in aliens ’ detention the balance of interests should weigh in favour of the alien, unless special circumstances dictated otherwise. The Regional Court found that the new “research” started by the Netherlands authorities with the help of the British authorities did not warrant a prolongation of the applicant ’ s detention beyond twelve months. Taking account of the fact that it did not appear that the actual expulsion of the applicant, on an actual date, had been foreseen, the Regional Court upheld the applicant ’ s appeal noting that he should have been released on 20 May 2012. As to the claim for compensation it held:

“2.6 The Regional Court finds in principle grounds of equity present for awarding [the applicant] compensation. However, [the applicant] has not provided the required cooperation to realise his expulsion. Therefore, the Regional Court finds grounds to reduce the compensation to nil.”

24. It is noted that no further appeal lies against the decision of the Regional Court on a repeat appeal ( vervolgberoep ) against aliens ’ detention.

B. Relevant domestic law

1. The Aliens Act 2000

25. The Aliens Act 2000, in its relevant part, provides as follows:

Section 59

“1. If required in the interests of public order or national security, Our Minister may, with a view to expulsion, order the detention of an alien who:

(a) is not lawfully resident; ...

2. If the documents necessary for the return of the alien are available ( voorhanden zijn ), or will be available in the near future ( op korte termijn ), the interest of public order is assumed to require ( vorderen ) the detention of the alien, ... ”

Section 106

“1. If the Regional Court orders the lifting of a measure deprivative of liberty ( maatregel strekkende tot vrijheidsontneming ) , or if the deprivation of liberty is lifted even before the request for the lifting of that measure is considered, it may grant the alien compensation at State expense. Damage shall include non-pecuniary damage. ...”

2. The Code of Criminal Procedure

26. Article 90 of the Code of Criminal Procedure, in its relevant part, provides as follows:

Article 90

“1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so. ... ”

COMPLAINTS

27. The applicants complain under Article 5 § 5 of the Convention that they were not awarded any compensation for their unlawful detention.

QUESTION TO THE PARTIES

Did the applicants have an effective and enforceable right to compensation for their unlawful aliens ’ detention in contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention (see, inter alia , Emin v. the Netherlands , no. 28260/07 , 29 May 2012) ?