Application No. 13921/88 Application No. 13922/88
by Sousan MOSLEMI by Maziyar Shafie HAGSHNAS
against the Netherlands against the Netherlands
The European Commission of Human Rights sitting in private
on 9 July 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application No. 13921/88 introduced on 14
April 1988 by Sousan MOSLEMI against the Netherlands and registered on
9 June 1988 and to the application No. 13922/88 introduced on 15 April
1988 by Maziyar Shafie HAGSHNAS against the Netherlands and registered
on 9 June 1988;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
13921/88, 13922/88
THE FACTS
The facts as submitted by the parties may be summarised as
follows.
The applicants are Iranian citizens. The first applicant was
born in 1964 and resides in Zaandam, the Netherlands. The second
applicant was born in 1966 and resides in Maastricht, the Netherlands.
Before the Commission they are represented by Mr. R.J. Hamerslag, a
lawyer practising in Amsterdam.
The applicants entered the Netherlands on 24 April 1987 at
Schiphol, the Dutch national airport. The following day they made a
request to be admitted as refugees. On 12 and 13 May 1987
respectively, the Deputy Minister of Justice decided that they were
not allowed to enter the country. They were taken to a special centre
at Schiphol airport for asylum seekers pending the decision whether or
not they would be granted refugee status and permission to enter the
Netherlands. This centre is a limited security area at the airport
under permanent surveillance of the police. It is only possible to
leave the centre by leaving the country or entering it, once a
residence permit has been granted.
On 21 May 1987, the applicants requested the Deputy Minister
of Justice to review the decisions of 12 and 13 May. To prevent
deportation, they instituted summary proceedings (kort geding) before
the President of the Regional Court (Arrondissementsrechtbank) of
Haarlem. They withdrew these proceedings after the Deputy Minister
had decided to grant suspensive effect to their request for revision
and they had been allowed into the country on 8 June 1987.
In the meantime they requested the Regional Court to declare
their placement at the centre at Schiphol airport unlawful and to
release them on the basis of Articles 40 and 41 of the Aliens Act
(Vreemdelingenwet). They moreover claimed damages for wrongful
detention. By order of 5 June 1987 the Regional Court declared the
request inadmissible on the ground that their placement at the centre
at Schiphol airport did not constitute detention within the meaning of
Articles 19 and 26 of the Aliens Act. They appealed against this
decision to the Court of Appeal (Gerechtshof) of Amsterdam which
upheld the order of the Regional Court on 22 October 1987.
The first applicant received a residence permit for
humanitarian reasons on 13 November 1987. The second applicant was
granted the status of refugee in July 1989.
COMPLAINTS
The applicants complain under Article 5 para. 1 (f) of the
Convention that they have been unlawfully detained at the centre at
Schiphol airport.
They also submit that contrary to Article 5 para. 4 of the
Convention they were denied access to court in order to obtain a
decision on the lawfulness of their detention.
Finally, they claim compensation for their unlawful detention.
13921/88, 13922/88
PROCEEDINGS BEFORE THE COMMISSION
The applications were introduced on 14 and 15 April 1988
respectively and both were registered on 9 June 1988.
On 4 December 1989 the Commission decided to join the
applications and to communicate them to the respondent Government and
invite them to submit written observations on the admissibility and
the merits of the applications.
The Government's observations were received by letter dated 16
February 1990 and the applicants' observations were dated 20 April
1990.
REASONS FOR THE DECISION
Having regard to Article 30 para. 1 (c) of the Convention, the
Commission notes that the applicants have been released from the
reception centre and that they have been granted a residence permit
and the status of refugee respectively. Moreover, the Commission
notes that the applicants can claim compensation for their detention
on the basis of Article 40 of the Aliens Act, relying in this respect
on a judgment by the Supreme Court of 9 December 1988 declaring this
kind of detention unlawful. The Commission finds no special
circumstances in respect of human rights as defined in the Convention
which require examination of the application to be continued, in
accordance with Article 30 para. 1 in fine of the Convention.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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