Communicated on 30 August 2016
THIRD SECTION
Application no. 70286/14
Sameer HANNAN and Hayarpi KIRAKOSYAN
against the Netherlands
lodged on 28 October 2014
STATEMENT OF FACTS
1. The first applicant, Mr Sameer Hannan, is a Syrian national born in 1983. The second applicant, Ms Hayarpi Kirakosyan, is an Armenian national born in 1987. They are represented before the Court by Mr M. Spapens, a lawyer practising in Amsterdam.
2. The applicants are the parents of Daniel Hannan, their son, who was born on 28 September 2007. The family live in Zwolle.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Arrival and asylum proceedings
4. The applicants and Daniel arrived at Schiphol (Amsterdam) Airport on 1 June 2013. They were denied access to Netherlands territory.
5. The applicants lodged asylum requests, in their own names and Daniel’s, on 8 June 2013. Asylum was granted on 12 June 2013.
2. Detention
6. Pending the decision on their requests for asylum the applicants and Daniel were confined to the asylum application centre (aanmeldcentrum) at Schiphol (Amsterdam) Airport.
7. It would appear that the applicants did not leave the asylum application centre immediately following the grant of asylum on 12 June 2013 but had to wait until the following day for transport to open accommodation elsewhere.
(a) Proceedings before the Regional Court
8. On 11 June 2013 the applicants lodged a habeas corpus appeal under the Aliens Act 2000 (Beroepschrift Habeas Corpus Vreemdelingenwet 2000) with the Regional Court (rechtbank) of The Hague, seeking an order for their release and monetary compensation for their detention.
9. The Regional Court of The Hague, sitting in Haarlem, dismissed the appeal on 25 February 2014.
10. It held, referring to the case-law of the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) (decision of 22 May 2012, ECLI:NL:RVS:2012:BW6799, see below) that whenever an asylum-seeker was denied access to Netherlands territory pending examination of his or her asylum claim deprivation of liberty was justified in principle by the interest of guarding the country’s borders.
11. It found that the conditions of detention in the Schiphol detention area were not unsuitable for a six-year-old child detained for under a fortnight. It quoted from a decision given on 11 December 2013 by the Regional Court of The Hague, sitting in Amsterdam (no. AWB 13-10688), which had noted, in particular, the following features:The floor surface of each cell was 13.4 square meters. The cells were provided with non-opening windows and a ventilation grid that could be opened. The cells were furnished with bunk beds, a table, a chair, a television, a refrigerator, an electric kettle, a telephone, a microwave oven, cutlery and lockers, and a separate space with a shower, a washbasin and a lavatory. For families with children, two adjoining cells could be combined to a single area with a floor surface of 26.8 square meters by opening a door separating the two. The cells were not under camera surveillance but there was a judas window in the cell door.A kitchen area was available for the detainees to cook their own food if they preferred it to the meals provided. The detainees received 10 euros pocket money a week to purchase food and other items. There was a recreation area for children provided with toys, a Playstation 2 game computer, books in various languages, a television set, a DVD player and DVDs. This area was separate from the recreation area for adults.There was a courtyard covering 650 square meters; this was surrounded by walls 4 meters high which were partly covered with ivy. In the centre was a small field of artificial grass with two small goals; this covered most of the surface area of the courtyard. There were also a spring rocker, a basketball pole and some concrete seats. On one of the sides there was a covered area measuring approximately 1.5 by 5 meters.All the areas mentioned were accessible to the detainees as long as they were not locked in their cells, which they were from 9.30 p.m. until 8 a.m.The interview rooms were situated outside the detention area proper. There was a play area for children, provided with toys, where children could remain if it was considered undesirable that they should attend any interviews.Despite all these features designed with families in mind, the detention building had the character of a prison (penitentiair karakter). The physical conditions (verblijfsomstandigheden) also comprised elements reminiscent of a penitentiary setting, such as the continuous visible presence of uniformed guards, camera surveillance outside the cells, the examination of adult detainees with a body scanner when they left or entered the detention area and the lock-in between 9.30 p.m. and 8 a.m.
12. The Regional Court awarded the applicants compensation for the additional day they had had to spend in detention owing to the unavailability of transport on the day they were to be released.
(b) Proceedings before the Administrative Jurisdiction Division of the Council of State
13. The applicants lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State. With regard to the detention of Daniel, they relied on, inter alia, Article 3 of the Convention and Article 37 (b) of the Convention on the Rights of the Child.
14. On 1 May 2014 the Administrative Jurisdiction Division dismissed the further appeal on summary reasoning.
B. Relevant domestic law and practice
1. The Aliens Act 2000
15. As relevant to the case, the Aliens Act 2000 provides as follows:
Section 6
“1. An alien to whom access is denied may be required to remain in an area or place indicated by an official charged with guarding the borders.
2. An area or place as referred to in the first paragraph may be secured against unauthorised departure. ...”
2. The Aliens Circular 2000
16. At the relevant time, a policy rule set out in paragraph A5/3.2 of the Aliens Circular 2000 (Vreemdelingencirculaire 2000) provided that a family that included underage children would be detained under section 6 of the Aliens Act 2000 for no longer than two weeks.
3. Relevant domestic case-law
17. In its decision of 22 May 2012, ECLI:NL:RVS:2012:BW6799, the Administrative Jurisdiction Division of the Council of State held that cases in which asylum-seekers were refused access to the Netherlands were in principle cases in which detention “proved necessary” within the meaning of Article 7 § 3 of Council Directive 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”).
C. Relevant international law
1. The Convention on the Rights of the Child
18. The Convention on the Rights of the Child, in its relevant part, provides as follows:
Article 37
“States Parties shall ensure that:
...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; ...”
2. The Reception Directive
19. European Union Council Directive 2003/9 of 27 January 2003, laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”), Official Journal L 031, 06/02/2003 P. 0018 – 0025, in its relevant part, provides as follows:
Article 7
Residence and freedom of movement
“1. Asylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.
2. Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application.
3. When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law.
4. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national legislation. ...”
Article 18
Minors
“1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. ...”
COMPLAINT
The applicants complain under Article 3 of the Convention about the detention of their son Daniel Hannan.
QUESTION TO THE PARTIES
Did the detention of Daniel Hannan in the asylum application centre (aanmeldcentrum) at Schiphol Airport amount to inhuman or degrading treatment (cf. Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, ECHR 2006‑XI; Muskhadzhiyeva and Others v. Belgium, no. 41442/07, 19 January 2010; and Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012)?
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