SAMY v. THE NETHERLANDS

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36499/97
by Ali SAMY
against the Netherlands

The European Court of Human Rights, sitting on 4 December 2001 as a Chamber composed of[Note1]

MrJ.-P. Costa, President,
MrGaukur Jörundsson,
MrL. Loucaides,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 11 March 1997 and registered on 16 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant states that he is Ali Samy and that he is an Algerian national, born in 1968 in Algiers. He is currently living in the Netherlands. He is represented before the Court by Mr S.J. van Der Woude, a lawyer practising in Amsterdam.

A.  The circumstances of the case

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

On 26 August 1996, the applicant was arrested and taken into detention on suspicion of theft. He was released on the same day. However, as it had appeared during the criminal investigation that he was likely to be an illegal alien, he was handed over to and, in accordance with Article 19 § 2 of the Aliens Act (Vreemdelingenwet), apprehended by the Aliens Department (Vreemdelingendienst) in order to verify his identity, nationality and residence status.

On 27 August 1996, in accordance with Article 26 § 1 of the Aliens Act, the State Secretary of Justice (Staatssecretaris van Justitie) ordered the applicant’s placement in aliens’ detention with a view to his expulsion (vreemdelingenbewaring) and, on the same day, issued an order for the applicant’s expulsion.

In a statement taken from the applicant on 29 August 1996 by an official of the Aliens’ Police Department (Vreemdelingenpolitie), he declared that his name was Ali Samy, that he was an Algerian national and that he was born on 15 November 1968 in Algiers. He further stated, inter alia,:

“I understand that I am obliged to co-operate in the establishment of my identity. I am not married and have no children. I have Algerian nationality. My address in Algeria is Bab El ... in Algiers in Algeria. I have been illegally in the Netherlands for one year already. I had an Algerian passport, but it has expired and is in France. I came by train from France to the Netherlands. Before coming to the Netherlands, I lived in France for 7 years. The police in France know me as an illegal alien. .... I want to return to my country by myself. I want to co-operate fully in returning to Algeria.”

I.

On 17 September 1996, the applicant’s lawyer filed a request for the applicant’s release from aliens’ detention with the Hague Regional Court (Arrondissementsrechtbank). He argued that, in the absence of concrete indications of unlawful residency, the applicant’s detention lacked a legal basis. He further argued that there were no prospects for an expulsion within a reasonable time, as the applicant had not yet been presented to the Algerian authorities in the Netherlands whereas practice showed that these authorities did not issue a laissez-passer to Algerian persons who did not have any documents.

On 3 October 1996, the applicant was presented in person to the Algerian authorities in the Netherlands for the purposes of identification and the issuance of a laissez-passer. The Algerian consular authorities refused to take the request for a laissez-passer into consideration because the applicant was not Algerian, but was believed to be of Moroccan origin.

In a decision given on the same day, following a hearing held on 26 September 1996, the Hague Regional Court sitting in Nieuwersluis rejected the request for release. It held that the investigation of the applicant’s identity was being pursued with due diligence and that, since in the criminal investigation, the applicant was unable to prove his identity and had refused to state his particulars, there were sufficient grounds for an investigation under Article 19 § 2 of the Aliens Act.

The Regional Court further noted that a presentation to the Algerian authorities had been scheduled and that, according to information supplied by the State Secretary of Justice, this had not been possible at an earlier stage as only a limited number of persons could be presented to these authorities. It further rejected as contradicted by the facts the contention that the Algerian authorities did not issue travel documents to foreigners without any documents. It finally held that the applicant’s detention was not contrary to the Aliens Act and that, after having weighed the interests involved, his detention could not reasonably be regarded as unjustified. A copy of this decision was sent to the applicant on 14 October 1996.

In the meantime, on 7 October 1997, the applicant’s file had been submitted to the Moroccan authorities requesting them to provide the applicant with a laissez-passer. The Netherlands authorities contacted the Moroccan authorities on a weekly basis for information about the ongoing investigation of the applicant’s identity in Morocco.

II.

On 29 November 1996, the Hague Regional Court received a second request for the applicant’s release, dated 21 November 1996, from the applicant’s lawyer. The applicant’s lawyer argued that there were no real prospects of an expulsion within a reasonable time as the applicant’s presentation on 3 October 1996 to the Algerian authorities had remained without any results. A hearing on the second request for release was held before the Hague Regional Court on 16 December 1996.

In his letter of 21 January 1997, the applicant’s lawyer informed the Hague Regional Court sitting in Haarlem that, on 17 January 1997, he had filed a new request for the applicant’s release with the Hague Regional Court sitting in Amsterdam that had become the competent Hague Regional Court following the applicant’s transfer to another detention facility. In this letter, the applicant’s lawyer further submitted that, in the absence of any written decision on the applicant’s second request for release, the time-limit referred to in Article 34a of the Aliens Act as well as the delay mentioned in Article 5 § 4 of the Convention had expired. He requested the Hague Regional Court sitting in Haarlem to take this into account in its decision to be taken.

In its written decision of 22 January 1997 the Hague Regional Court sitting in Haarlem rejected the second request for the applicant’s release. It noted that the applicant had been presented to the Algerian authorities on 3 October 1996 and that the request to issue a laissez-passer had not been taken up. It further noted that, at the end of November 1996, the Aliens Department had transmitted photographs and fingerprints of the applicant to the French authorities with a request for information as to his possible identity as the applicant had declared that he had lived in France for a number of years. In these circumstances, the Regional Court held that it could not be said that the investigation of the applicant’s identity was not pursued with due diligence.

Although it was uncertain when the results of the investigation in France were to be expected, the Regional Court nevertheless accepted that the applicant’s expulsion could be expected within a reasonable time. In this respect, the Regional Court took into consideration that the investigation of the applicant’s identity was rendered difficult by his refusal to give any concrete indications as to his origins and that, therefore, he bore responsibility for the delays in this investigation. It finally held that the applicant’s detention was not contrary to the Aliens Act and that, after having weighed the interests involved, his detention could not reasonably be regarded as unjustified. It did not deal with the points raised in the letter of 21 January 1997 of the applicant’s lawyer. A copy of this decision was transmitted to the applicant on 22 January 1997.

At some unspecified point in time, the French authorities informed the Netherlands authorities that the applicant was not known to them.

III.

In the third request for the applicant’s release filed by his laywer on 17 January 1997, it was argued that the decision on his second request had not been taken within two weeks after the hearing as required under Article 34a § 4 of the Aliens Act. In this respect the applicant invoked Article 5 of the Convention and relied on the Court’s findings in the case of Sanchez-Reisse v. Switzerland (judgment of 21 October 1986, Series A no. 107). It was further argued that the applicant should be released as, it not being likely that he had Moroccan nationality, there were no real prospects of an expulsion within a reasonable time.

On 6 February 1997, the Moroccan authorities informed the Netherlands authorities that they would not provide the applicant with a laissez-passer since it could not be ascertained whether he was of Moroccan origin.

In its decision of 11 February 1997, following a hearing held on 28 January 1997, the Hague Regional Court sitting in Amsterdam rejected the argument under Article 34a § 4 of the Aliens Act. It noted that petitioners in successful requests for release from aliens’ detention are in practice informed of this at very short notice (mostly within one day) and that this practice is aimed at preventing a further detention of  such a person for the sole reason that no decision in writing has been issued yet. The Regional Court further stated that this was also the practice of the Hague Regional Court sitting in Haarlem. The Regional Court considered that this practice was or could have been known to representatives who regularly act as counsel of persons placed in aliens’ detention. As the applicant’s representative had not been informed shortly after 16 December 1997 that the second request had been successful, he could have concluded that it had not been successful. The fact that no reasoning in writing had been issued did not alter this and in any event could not lead to a finding that the requirement of speed under Article 5 of the Convention had been disrespected in that, contrary to the situation in the case of Sanchez-Reisse v. Switzerland relied on by the applicant, there was no uncertainty for the applicant as to the result of his request as he could – albeit indirectly – have become aware of the court’s decision. The Regional Court further held that the applicant’s interests had not been harmed as the duration of his detention had not been affected by the late issuance of the decision in writing.

The Regional Court further rejected the argument that there was no prospect of an expulsion within a reasonable time. As it had appeared that, contrary to his own declaration, the applicant did not hold Algerian citizenship and as it had appeared that, at some point in time in the past, he had declared to the Netherlands authorities to be a Moroccan national, it could not be excluded that the Moroccan authorities would provide him with a laissez-passer. The Regional Court noted that the investigation of this question by the Moroccan authorities, following the applicant’s presentation to them, was still ongoing. Noting the regular reminders addressed to the Moroccan authorities, the Regional Court did not find that the Netherlands authorities failed to pursue the matter with due diligence. In this respect the Regional Court further considered that, in the light of the fact that the applicant had initially given an incorrect nationality and of his attitude, the applicant was responsible for the duration of his detention. It finally held that the applicant’s detention was not contrary to the law and that in reasonableness, after having weighed the interests involved, his detention could not be regarded as unjustified.

A copy of this decision was sent to the applicant on 21 February 1997.

IV.

On 3 March 1997, the applicant’s lawyer filed a fourth request for the applicant’s release from detention, including a request for compensation, with the Hague Regional Court. He submitted that, on 27 February 1997, the applicant had been detained for a period of six months whereas the expectations for an expulsion had not in any way been concretised. He pointed out that, in practice, the Netherlands authorities consider that the prospects of an expulsion must become concrete within a period of six months. The applicant’s lawyer further requested compensation within the meaning of Article 34j of the Aliens Act of 150 Netherlands Guilders (NLG) per day for the applicant’s detention as from 27 February 1997.

On 7 March 1997, the applicant was released from detention because there was no real prospect for expulsion at that time. In a declaration dated 10 March 1997 and signed by the applicant in person, the applicant informed the Regional Court of this development and stated that he would not personally attend the hearing scheduled for 11 March 1997 but that he would be represented by his lawyer.

In its oral decision of 11 March 1997, the Hague Regional Court sitting in Amsterdam noted that the applicant had been released on 7 March 1997 and that the State Secretary of Justice had no objections against the granting of compensation for the applicant’s detention as from 27 February 1997.

The Regional Court concluded that it was not in dispute that the applicant’s detention as from 27 February 1997 had no longer been lawful. As it had not been argued and as it had not appeared that the applicant’s detention was unlawful prior to that date, it decided to award the applicant the compensation requested. As the applicant had been detained for eight days after 27 February 1997, he was awarded compensation to an amount of NLG. 1,200. The Regional Court further issued a costs order against the State Secretary of Justice.

B.  Relevant domestic law and practice

Article 26 of the Aliens Act reads:

“1.  If the interests of public order, public policy or national security so require, the following categories of aliens may be detained:

a.  aliens whose expulsion has been ordered;

b.  aliens in respect of whom there are serious grounds to believe that their expulsion will be ordered;

c.  aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 , pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees.

2.  An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so.

3.  Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month.

4.  Rules governing the regime for aliens in detention, including the necessary restrictive measures, shall be laid down by order in council (algemene maatregel van bestuur).”

As Article 26 of the Aliens Act does not stipulate any time-limit for the duration of placement in aliens’ detention, an alien who does not have any identity papers and whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. On the other hand, the lawfulness of a placement in aliens’ detention can be challenged at any point in time before a court by filing an appeal within the meaning of Article 34a § 2 of the Aliens Act (see below). The filing of such an appeal is not subject to any time-limit (Article 35 § 3 Aliens Act). In principle an alien may lodge appeals against a measure depriving him of his liberty as often as he wishes. The only limitation is that, when the Regional Court has determined the lawfulness of the imposition and/or continuation of the measure, the scope of a subsequent appeal is limited to the lawfulness of the further continuation of the measure.

Where the court considers that there are no reasonable prospects of expulsion within a reasonable time, it may order that the placement in aliens’ detention be discontinued.

In accordance with Article 34 j of the Aliens Act, the Regional Court may, where it orders that a measure of placement in aliens’ detention be lifted, award the person concerned compensation at the expense of the State for damages, including non-pecuniary damage.

According to Dutch case-law, the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, it may be that this point in time is reached at an earlier or later point in time than after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control.

Article 34a of the Aliens Act provides:

“1.  A measure taken under this Act to the effect of a restriction or deprivation of liberty shall, for the application of Article 8:1 § 1 of the General Administrative Law Act (Algemene Wet Bestuursrecht), be considered on a par with a decision (besluit) .

2.  On a first appeal against a decision to the effect of a deprivation of liberty, the Regional Court shall hear the alien within two weeks, either during the preliminary phase of the proceedings under Article 8:44 of the General Administrative Law Act, or at the court hearing itself.

3.  If the appeal is directed against a decision referred to in the second paragraph, the Regional Court shall set the time of the hearing without delay and in any event not later than two weeks after the day on which the appeal notice has been sent. Notwithstanding the provisions of Article 8:42 § 2 of the General Administrative Law Act the time–limit referred to in that provision shall not be extended.

4.  The Regional Court shall give judgment in writing within two weeks after the hearing is closed, unless it immediately gives an oral judgment during the hearing. Notwithstanding the provisions of Article 8:66 § 2 of the General Administrative Law Act, the time–limit referred to in that provision shall not be extended.

5.  If the Regional Court finds that the application or execution of the measure is in conflict with this Act or, having balanced all interests involved, cannot reasonably be considered to be justified, it shall declare an appeal under this provision well–founded and order the discontinuation of the measure or an alternate method of  execution.”

Pursuant to Article 8:65 § 3 of the General Administrative Law Act, the President of the Regional Court informs the parties, immediately after the closure of the court’s investigation at the hearing, when the court will pronounce its decision.

Pursuant to Article 8:79 of the General Administrative Law Act, the Registrar of the Regional Court transmits to the parties, within two weeks after the date of the decision, a copy of the decision given in writing or a copy of the court’s minutes of the oral decision.

Although no appeal lies against a decision by the Regional Court on the lawfulness of detention under the Aliens Act, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in unlawful detention for expulsion purposes. Furthermore, appeals have been admitted in cases where it was alleged that, in the proceedings before the Regional Court, fundamental legal principles (fundamentele rechtsbeginselen) have been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127; The Hague Court of Appeal, 7 April 2000, Jurisprudentie Bestuursrecht 2000, nrs. 147; and The Hague Court of Appeal, 18 May 2000, Jurisprudentie Bestuursrecht 2000, nr. 142).

In a decision of 26 April 1994, the Hague Regional Court sitting in ‘s‑Hertogenbosch held that, given the time-limits set out in Article 34a §§ 2 and 4 of the Aliens Act, the legislator had indicated that the duration of proceedings on an appeal within the meaning of Article 34a of the Aliens Act should not exceed four weeks. It held that a failure to respect this maximum duration of such proceedings would give rise to a violation of Article 5 § 4 of the Convention and should lead to a discontinuation of the detention, unless the case would be of extraordinary seriousness or complexity (Rechtspraak Vreemdelingenrecht 1994, nr. 66).

In a normative decision of 20 July 1994, the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court held that a failure to respect the time-limit referred to in Article 34a § 2 of the Aliens Act is in principle unlawful and should lead to a discontinuation of the impugned measure of deprivation of liberty, except when there is a situation of force majeure or where the court has commenced but not yet terminated hearing the person concerned within the two weeks’ time-limit (Rechtspraak Vreemdelingenrecht 1994, nr. 70).

COMPLAINTS

1.The applicant complains that his detention for the purpose of his expulsion from the Netherlands is contrary to his rights under Article 5 § 1 (f) of the Convention. He argues that, as from 3 October 1996, there were no real prospects for his expulsion to Algeria given the Algerian authorities’ refusal to provide him with travel documents. He further submits that there were no more real prospects for his expulsion to Morocco as from 1 January 1997 or as from any date between 1 January 1997 and 7 March 1997 whereas it has never appeared that there have been any prospects of his expulsion to another country.

2.The applicant further complains that in the proceedings on his second request for release, the Aliens Division of the Hague Regional Court sitting in Haarlem, contrary to Article 34a § 4 of the Aliens Act, failed to issue its decision in writing within two weeks after the hearing held on 16 December 1996 and that thus his detention was not “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention.

3.The applicant complains that his rights under Article 5 § 4 of the Convention have been disrespected in the proceedings on his first, second and third requests for release. He submits that it took the Regional Court, respectively, 25, 56 and 36 days to determine his first three requests for release. The applicant argues that these periods cannot be regarded as compatible with the requirement of “speedily” within the meaning of Article 5 § 4 of the Convention.

4.The applicant finally complains that, as his detention was unlawful on one or more of the above grounds, he should be entitled to compensation under Article 5 § 5 of the Convention. As an appeal against the negative decisions at issue was not possible, he has no further remedies to challenge the lawfulness of his detention prior to 27 February 1997 and, on that basis, to claim compensation in respect of the first six months of his detention.

THE LAW

The applicant alleges that his rights under Article 5 §§ 1 (f), 4 and 5 of the Convention have been violated. Article 5 of the Convention, insofar as relevant, reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ...

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

1.Article 5 § 1 (f) of the Convention

The applicant complains that the duration of his placement in aliens’ detention, given the lack of prospects for his expulsion during his detention and the time it took the Hague Regional Court to decide his third request for release, was contrary to his rights under Article 5 § 1 (f) of the Convention.

The Government submit that the applicant’s detention was in accordance with the requirements of Article 5 § 1 (f) of the Convention in that, during his detention, the authorities worked with due diligence towards the applicant’s expulsion. They made continuous efforts to determine his identity, including requesting assistance from the Algerian, Moroccan and French authorities, in order to make his expulsion possible. The applicant’s refusal to co‑operate with these efforts, for which the authorities cannot be held responsible, slowed and hindered that process.

As to the complaint that the Hague Regional Court, contrary to Article 34a § 4 of the Aliens Act, failed to issue its decision in writing within two weeks after the hearing held on 16 December 1996, the Government submit that the time-limit contained in Article 34a § 4 is a procedural time–limit aimed at encouraging courts to handle cases speedily. The Government argue that it cannot be concluded from the fact that this time-limit was exceeded that the continuation of the applicant’s detention after the expiration of this time–limit was thus necessarily unlawful. On this point, the Government emphasize that the applicant was detained under Article 26 of the Aliens Act and remained without a valid residence title, had no fixed address, did not have sufficient means of existence and was subject to an expulsion order. Moreover, in the subsequent decisions of the Hague Regional Court, it was held that the applicant’s placement in aliens’ detention until 27 February 1997 was lawful.

The Government further submit that the applicant was released when, after six months, it became clear that there were no reasonable prospects of his expulsion within a reasonable time. Furthermore, the applicant was awarded compensation for the time spent in detention since 27 February 1997 until his release on 7 March 1997.

The applicant submits that his placement in aliens’ detention became unlawful for the purposes of Article 5 § 1 of the Convention as from 3 October 1996, when the Algerian authorities refused to provide him with a laissez-passer. The subsequent application to the Moroccan authorities was very vague and incomplete. In particular, certain Moroccan personal details were not included in the applicant’s case-file that was transmitted and, for unclear reasons, it was decided not to present the applicant in person to the Moroccan authorities, whereas a personal presentation would have clarified the question whether or not he was of Moroccan origin much sooner than 6 February 1997. The applicant further submits that the French authorities were only called on for assistance almost two months after the negative response by the Algerian authorities. The applicant is therefore of the opinion that it cannot be said that, after 3 October 1996, the authorities acted with due diligence on their efforts to establish his identity.

As to the Hague Regional Court’s failure to respect the time–limit set out in Article 34a § 4 of the Aliens Act, the applicant, referring to the normative decision of 20 July 1994 of the Legal Uniformity Division of the Hague Regional Court, argues that according to Dutch law detention is no longer lawful if it does not satisfy the guarantees laid down in the interests of detainees in Article 34a § 2 of the Aliens Act which, according to the applicant, undeniably apply also to the time–limit referred to in the fourth paragraph of this provision.

The Court notes that the applicant was detained “with a view to deportation” within the meaning of Article 5 § 1 (f) of the Convention. The Court recalls that all that is required under Article 5 § 1 (f) is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law. However, any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not pursued with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) of the Convention (Chahal v. United Kingdom judgment of 15 November 1996, Reports 1996-V, pp. 1862-1863, §§ 112-113).

It must therefore be determined whether the expulsion proceedings in the applicant’s case were conducted with due diligence. The Court notes that the period under consideration started on 26 August 1996 when the applicant was placed in detention and lasted until 7 March 1997 when he was released.

Insofar as the applicant’s complaint relates to his detention between 27 February 1997 and 7 March 1997, the Court notes that, in its decision of 11 March 1997, the Hague Regional Court found that the applicant’s detention as from 27 February onwards had been unlawful and awarded the applicant compensation for the time spent in detention after 27 February. In these circumstances, the Court finds that, as to this period, the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention.

As to the applicant’s detention until 27 February 1997, the Court considers that the duration of the applicant’s detention for the purposes of his expulsion is directly linked to the fact that the Netherlands authorities had to verify the applicant’s stated identity and nationality in order to be able to proceed with his expulsion to a country willing to accept him. This was only possible with the assistance of foreign authorities and the applicant himself.

The Court notes that, for this purpose and on the basis of the information made available to them, the Netherlands authorities contacted the Algerian, Moroccan and French authorities, respectively. The Court further notes that it does not appear that the applicant himself, apart from the information given by him in his statement taken on 29 August 1996, has sought to assist actively in the process of establishing his identity and nationality by providing both the Netherlands and foreign authorities involved with any further elements that might be helpful.

In these circumstances, the Court finds no appearance of any unacceptable lack of activity or diligence on the part of the Netherlands authorities in their handling of the applicant’s case.

The question remains whether the applicant’s placement in aliens’ detention was “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with. A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Convention organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law (cf. Douiyeb v. the Netherlands [GC], no. 31464/96, 4.8.1999, §§ 44-45).

The Court notes that the applicant was placed in aliens’ detention on the basis of Article 26 § 1 of the Aliens Act. It has not been argued and it has not appeared that this decision was not “in accordance with a procedure prescribed by law”. The Court observes that, under Dutch law, there is no time-limit for the duration of a placement in aliens’ detention under Article 26 § 1 of the Aliens Act of an alien who does not have any identity papers, whose expulsion has been ordered and in respect of whom there are reasonable prospects of expulsion within a reasonable time. Whether or not there are reasonable prospects of expulsion within a reasonable time is to be assessed by the competent domestic court on the basis of the particular circumstances of each case where the person concerned takes proceedings before such a court arguing that there are no such prospects. Having regard to the findings of the Hague Regional Court in its decisions taken on the applicant’s four successive requests for release, the Court accepts that the applicant’s placement in aliens’ detention remained lawful under domestic law until 27 February 1997.

The applicant further argues that the Hague Regional Court erroneously – given the domestic case-law on this point –  failed to find that its failure to determine the second request for release within the statutory time-limit set out in Article 34a § 4 of the Aliens Act rendered the applicant’s placement in aliens’ detention unlawful. In the applicant’s opinion, this failure entailed a violation of Article 5 § 1 (f) of the Convention in that his placement in aliens’ detention was thus not “in accordance with a procedure prescribed by law”. On this point the Court considers that, for the purposes of Article 5 § 1 (f) of the Convention, the phrase “in accordance with a procedure prescribed by law” is to be regarded as referring primarily to Article 26 of the Aliens Act, on which provision the applicant’s placement in aliens’ detention was based, and not to Article 34a of that Act which contains merely procedural requirements for dealing with requests for release in which persons placed in aliens’ detention can challenge the lawfulness of their deprivation of liberty under Article 26 of the Aliens Act. The domestic courts found that the applicant’s placement in aliens’ detention was in accordance with the conditions set out in Article 26 of the Aliens Act.

However, for the purposes of Article 5 of the Convention, the lawfulness under domestic law of the applicant’s placement in aliens’ detention is not in itself decisive. It must also be established that his placement in aliens’ detention during the period under consideration was in conformity with the purpose of Article 5 § 1 of the Convention which is to prevent persons from being deprived of their liberty in an arbitrary fashion (cf. Witold Litwa v. Poland, no. 26629/95, 4.4.2000, §§ 72-73).

The Court observes that the applicant was placed in aliens’ detention for the purpose of his expulsion in accordance with Article 26 § 1 of the Aliens Act and recalls its above finding that, during his detention, the Netherlands authorities pursued these expulsion proceedings with the required due diligence. In these circumstances, even if the decision of the Hague Regional Court of 22 January 1997 was given too late according to national law, the Court cannot find that the applicant’s placement in aliens’ detention until 27 February 1997 involved an arbitrary deprivation of liberty.

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2.Article 5 § 4 of the Convention

The applicant complains that his rights under Article 5 § 4 of the Convention have been disrespected in the proceedings on his first three requests for release in that these requests were not determined speedily.

The Government submit in the first place that, as regards the first and third requests for release, the applicant has failed to exhaust domestic remedies since, in the domestic proceedings, the applicant only raised a complaint under Article 5 § 4 of the Convention in respect of the proceedings on his second request for release.

The Government further submit that the three requests for releases were decided in conformity with the requirements of Article 5 § 4 of the Convention. The delay between the submission and the decision taken on the first and third requests was 15 and 26 days, respectively. The Government is of the opinion that this is sufficient speed for the purposes of Article 5 § 4.

As to the second request for release, the Government concede that the period that elapsed between the hearing on the request and the giving of the decision was longer than in the proceedings on the first and third request. However, relying on the Court’s findings in the case of Sanchez-Reisse v. Switzerland (Series A no. 107), the Government argue that the concept of “speedily” under Article 5 § 4 is to be defined on the basis of the particular circumstances of each case. As noted by the Hague Regional Court in its decision of 11 February 1997, the applicant could have known, given the existing practice to inform successful appellants either during or shortly after the hearing, that his appeal would be rejected. Furthermore, under Article 35 § 3 of the Aliens Act, it was open to him to file a fresh request for release at any given point in time, including pending proceedings on an earlier request. He could, therefore, have filed a new request for release immediately after the two week time–limit set out in Article 34a § 4 of the Aliens Act had expired in the proceedings on his second request for release. The Government finally submit that in any event the applicant was not harmed in his interests since the Hague Regional Court concluded in these proceedings that the continuation of the applicant’s placement in aliens’ detention was lawful.

The applicant submits that he did comply with the requirement of exhaustion of domestic remedies. In the first place, only in a situation where fundamental principles of law have been disrespected can an appeal be filed against a rejection by the Hague Regional Court of a request for release from aliens’ detention, whereas a failure to comply with the requirement of speed under Article 5 § 4 of the Convention does not qualify as such. He further submits that, a complaint under Article 5 § 4 was raised in the proceedings on his third request for release.

The applicant argues that the time–limits set out in Article 34a of the Aliens Act all have the same purpose, namely to give a practical form to the obligation to provide a speedy decision as required by Article 5 § 4 of the Convention. It therefore does not concern a time–limit of a merely procedural nature but a fundamental guarantee included by the legislator in the Aliens Act in the interests of detained aliens.

The Court notes that, in the proceedings on his third request for release from aliens’ detention, the applicant did in fact complain that in the proceedings on his second request for release the Hague Regional Court had violated Article 5 § 4 of the Convention. The Court is therefore satisfied that, as to this complaint, the applicant has exhausted domestic remedies.

Insofar as the applicant complains of the duration of the proceedings on his first and third request, the Court does not find it necessary to determine the question whether the applicant has duly exhausted domestic remedies, since his complaint under Article 5 § 4 of the duration of these two sets of proceedings is in any event manifestly ill-founded for the following reasons.  

The Court recalls that the requirement of Article 5 § 4 of the Convention that decisions be taken “speedily” must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case (cf. Rehbock v. Slovenia, no. 29462/95, 28.11.2000, ECHR 2000-XII, § 84).

The Court notes that the applicant was placed in aliens’ detention for the purposes of his expulsion and that, during his detention, the Netherlands authorities attempted to establish, with the assistance of various foreign authorities, the applicant’s identity and nationality in order to be able to execute the order for the applicant’s expulsion.

The Court further notes that the applicant’s first request for release of 17 September 1996 was determined by the Hague Regional Court on 3 October 1996 and that his third request for release of 17 January 1997 was determined by the Hague Regional Court on 11 February 1997. In the particular circumstances of the present case, the Court cannot find that the duration of these proceedings fell short of the requirement of “speedily” set out in Article 5 § 4 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

As to the complaint whether the applicant’s second request for release was decided speedily as required by Article 5 § 4 of the Convention, the Court considers, in the light of the parties’ submissions, that this complaint raises issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. This part of the application is, therefore, not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3.Article 5 § 5 of the Convention

The applicant finally complains under Article 5 § 5 of the Convention that, as his detention was unlawful under Article 5 §§ 1 and 4,  he should be entitled to compensation

The Government submit that the applicant had an enforceable right to compensation at all times and that he did in fact avail himself of this right by requesting compensation in each of the proceedings that he brought in which he challenged the lawfulness of his detention. The fact that these compensation claims were not successful resulted from the finding of the Hague Regional Court in the first three sets of proceedings that his detention was lawful. In the fourth set of proceedings, the Hague Regional Court concluded that the applicant’s detention had become unlawful as from 27 February 1997 and did in fact award compensation to the applicant for the time spent in detention after this date.

The Court recalls that Article 5 § 5 guarantees an enforceable right to compensation to those who have been the victims of a deprivation of liberty contrary to the other provisions of Article 5 (cf. Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 14, § 38).

The Court, noting the possibility under Article 34j of the Aliens Act for the award of compensation for the time spent in aliens’ detention and observing that the applicant was in fact awarded compensation under this provision for the time spent in aliens’ detention after 27 February 1997, as from which date his detention was found to have become unlawful, considers that there is no indication that the applicant’s rights under Article 5 § 5 have been disrespected (cf. Steel and Others v. the United Kingdom judgment of 23 September 1998, Reports 1998–VIII, p. 2740, § 83).

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint that his second request for release from aliens’ detention was not determined “speedily” as required by Article 5 § 4 of the Convention[Note2];

Declares inadmissible the remainder of the application.

S. DolléJ.-P. Costa
RegistrarPresident

[Note1]Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). When inserting names via Alt+S please REMOVE the substitute judge’s names, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Registrar.)

[Note2]Summarise the complaints without necessarily citing the invoked Convention Articles.

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