AS TO THE ADMISSIBILITY OF
Application No. 17109/90
by V.O.O.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 March 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
J.-C. GEUS
M. NOWICKI
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 July 1990 by
V.O.O. against the Netherlands and registered on 31 August 1990 under
file No. 17109/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1957, is a Kenyan national presently
residing at Rosmalen, the Netherlands. At the time of the introduction
of the application, he was detained at the reception centre for asylum
seekers at Schiphol-Oost. Before the Commission, he is represented by
Mr. Th. Spijkerboer, a lawyer practising in Zaandam.
The facts as submitted by the applicant may be summarised as
follows.
The applicant was a member of the "Kenya Revolutionary Movement"
(KMR), an illegal political movement, which sent him in the course of
1988 to Libya to attend ideology courses. On 26 February 1989 he fled
Libya to Sweden as he had heard that all the KMR members had been
arrested in Kenya. However, upon arrival at Schiphol airport the same
day, he was prevented from flying to Sweden because it was expected
that the Swedish authorities would send him back to the Netherlands as
he only possessed an identity certificate.
On 27 February 1989 the applicant applied for asylum and for a
residence permit. At the same time, he was detained at the reception
centre for asylum seekers at Schiphol-Oost on the basis of Article 7a
of the Aliens Act (Vreemdelingenwet). Detention in such a centre
pursuant to this provision is considered to take place on Netherlands
territory, although Article 7a expressly stipulates that it does not
imply entry to the Netherlands. On 28 February 1989 both requests were
rejected by the Deputy Minister of Justice (Staatsecretaris van
Justitie) on the ground that the applicant's participation in the KMR
and his fear for arrest were questionable. On 14 March 1989 the
applicant filed a request for review (herzieningsverzoek) to which
suspensive effect was granted.
Meanwhile, on 10 March 1989, the applicant filed a request for
release and for damages with the Haarlem Regional Court
(Arrondissementsrechtbank) which rejected the request on 28 March 1989.
On 13 April 1989 the applicant was released and allowed to enter
the Netherlands.
By decision of 30 January 1990, the Amsterdam Court of Appeal
(Gerechtshof) declared the applicant's request for release inadmissible
as he was no longer detained and also declared inadmissible his request
for damages as the legal provision on which the request was based did
not apply to the present case and insofar as it could be considered to
have another basis, the request for damages had not been submitted in
the prescribed form. No plea of nullity was filed with the Supreme
Court (Hoge Raad) as such appeals are declared inadmissible when the
detention has ceased.
By letter of 21 March 1991, the Deputy Minister of Justice
informed the applicant that he had acceded to his request for review
and that he was granted the status of refugee.
COMPLAINTS
1. The applicant complains that he was unlawfully detained at the
detention centre for asylum seekers at Schiphol-Oost. He invokes
Article 5 para. 1 (f) of the Convention.
2. The applicant also complains that he was treated differently from
other categories of asylum seekers and that therefore his detention was
contrary to Article 14 in conjunction with Article 5 of the Convention.
3. The applicant finally complains that his detention constituted
a restriction applied for other purposes than those prescribed by
Article 5 para. 1 (f) of the Convention. He relies on Article 18 taken
together with Article 5 of the Convention.
REASONS FOR THE DECISION
Having regard to Article 30 para. 1 (c) of the Convention, the
Commission notes that the applicant has been released from the
reception centre and that he has been granted the status of refugee.
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 President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy