THIRD SECTION
DECISION
Application no. 60035/12
Joeri Borisovitch ZALOILO
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 12 June 2018 as a Chamber composed of:
Helena Jäderblom, President,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 21 July 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Joeri Borisovitch Zaloilo, was born in 1980 in Tblisi and lives in Schiedam. His nationality is stated to be unknown. He was represented before the Court by Ms H.H.R. Bruggeman, a lawyer practising in Lisse.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Disciplinary proceedings
3. The applicant was detained for the purpose of deportation in the Rotterdam detention centre, a remand centre accommodating persons in immigration detention.
4. On 25 August 2011 the governor of the detention centre gave a disciplinary decision placing the applicant in solitary confinement for fourteen days. The written confirmation of the decision, handed to the applicant on 28 August 2011, states the following grounds:
“You have displayed seriously inflammatory behaviour and incited your fellow detainees to an uprising. You have incited them to disobey the instructions of staff. You have refused, with a number of fellow detainees, to return to your cell. You have tried to prevent your fellow detainees from obeying the instructions of staff. You have seriously intimidated staff and forced them to open the door of the cell to let out one of the detainees who was already locked in.”
The term of solitary confinement was to end on 8 September 2011.
5. On 26 August 2011 the applicant submitted a complaint form stating that he had incited no one to rise against the prison staff and requesting the hearing of witnesses to prove it.
6. On 31 August 2011 the applicant, through his lawyer, lodged a formal complaint (beklag) against the solitary confinement decision with the supervisory board (Commissie van Toezicht) of the institution.
7. Also on 31 August 2011 the applicant lodged a request for the suspension of the solitary confinement measure with the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) (hereafter “the Appeals Board”).
2. The applicant’s transfer to the remand centre within “De Schie”
8. On 8 September 2011, immediately after the end of his term of solitary confinement, the applicant was transferred to the remand centre (huis van bewaring) within the penal institution “De Schie” in Rotterdam, a regular prison, on the orders of the governor of the Rotterdam detention centre. The decision ordering the transfer was not given in writing.
9. Also on 8 September 2011 the applicant lodged an objection (bezwaar) against the decision to place him in the remand centre within “De Schie”, together with a request for its suspension, with the Appeals Board.
10. On 16 September 2011 the Chairman of the Appeals Board ordered the suspension of the applicant’s placement in the remand centre within “De Schie” on the formal ground that the transfer decision had been given irregularly by the governor of the Rotterdam detention centre instead of by the selection officer (selectiefunctionaris) of the Ministry of Security and Justice.
11. Also on 16 September 2011 an official signing in the joint capacity of selection officer and head of the Bureau for the Coordination of Matters Concerning Aliens (Hoofd Bureau Coördinatie Vreemdelingenzaken) gave an order, effective on the same day, for the applicant to be transferred to the remand centre within “De Schie”. The decision stated the following reasons:
“During your stay in the Rotterdam detention centre you have endangered order, peace and quiet and security by inciting to an uprising and by particularly intimidating conduct towards staff.”
12. On 22 September 2011 the applicant, through his lawyer, lodged an objection against this decision also. As relevant to the case before the Court, he alleged a violation of Article 6 of the Convention in that he had not been heard before this decision was taken.
13. It is noted in the decision of the Appeals Board (see paragraph 18 below) that on 7 October 2011 the governor of the Rotterdam detention centre wrote to the applicant recognising that his detention in the remand centre within “De Schie” between 8 September 2011 and 16 September 2011 had not been based on a decision in proper form and that he was entitled to monetary compensation on that account.
3. The decisions of the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens
(a) The first decision
14. On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision on the applicant’s objection of 8 September 2011 (see paragraph 9 above). This decision stated that the governor of the detention centre had decided on 25 August 2011 that the applicant should be transferred to the remand centre within “De Schie” in Rotterdam on 8 September 2011, immediately after the end of his term of solitary confinement. However, since the governor had not the competence to give such a decision, a formal decision to this effect – dated, or backdated, 8 September 2011 but not committed in writing – was taken by the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens instead.
15. The applicant’s objection was declared inadmissible as out of time, the decision in issue having been taken on 25 August 2011 and the time-limit for lodging an objection being only seven days. It was added that the objection would have been dismissed as unfounded even if it had been admissible: the applicant had been transferred to a regular remand centre for legitimate operational reasons (om beheersmatige redenen) in view of his misbehaviour.
(b) The second decision
16. On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision dismissing the applicant’s objection of 16 September 2011 as unfounded. As relevant to the case before the Court, it included the following reasoning:
“I have been informed by the governor of the Detention Centre that the person concerned has played an active part in the uprising on 25 August 2011 in the Rotterdam Detention Centre. The person concerned (was among those who) created the uprising. He displayed inflammatory behaviour and repeatedly incited other detainees to rise up. He has refused to follow instructions given by staff and has encouraged others to do the same. He has forced the staff in a threatening way to release detainees who had been already locked in. The staff has complied in order to prevent further escalation. The person concerned has seriously intimidated the staff and seriously endangered order and security. The person has been placed in a regular remand centre for operational reasons in view of the disturbance he has caused in the Rotterdam detention centre, his prison history (which has also led to his being declared an undesirable alien (ongewenste vreemdeling)), and because he escaped from the Zeist detention centre on 7 January 2011.
In taking a placement or transfer decision I may reasonably trust the relevant information given me by the governor of the institution. My competence to transfer the person concerned to a different institution is not affected by the fact that the lawfulness of the governor’s decision, i.e. the disciplinary measure, is not yet established in law.”
4. Appeal proceedings
17. On 31 October 2011 the applicant, through his lawyer, appealed against the latter decision to the Appeals Board. As relevant to the case before the Court, he denied any wrongdoing; he complained of failures to hear staff of the Rotterdam detention centre and fellow detainees as witnesses and of the failure to make videotaped recordings of the incident available for viewing.
18. The Appeals Board gave its decision on 23 January 2012. It dismissed the applicant’s appeal. As to the fact that the applicant’s placement in the remand centre within “De Schie” between 8 and 16 September 2011 had not been based on any decision, the Appeals Board took note of the governor’s letter of 7 October 2011 recognising that fact (see paragraph 13 above) and referred the applicant to the governor of the Rotterdam detention centre himself for the compensation to which he was entitled. As relevant to the case before the Court, its decision further read as follows:
“4.2. ...
The complainant [i.e. the applicant], on whom immigration detention has been imposed, belonged to the category of detainees for whose accommodation remand centres are intended.
...
4.4. A sufficient case has been made out on the basis of the submissions made on appeal as well as the reports drawn up about the complainant that the behaviour of the complainant could justify his transfer to a different institution.
4.5. In situations that so require, such as the present, in which a further stay in a detention centre intended specifically for aliens is no longer a possibility, it is permitted, given the circumstances of the particular case, to place the detained alien concerned in an ordinary remand centre. The complainant has brought his transfer to the remand centre upon himself by his behaviour. In the remand centre, which has no separate department for aliens, the complainant’s status of alien is (as is apparent from the file) taken into consideration inasmuch as he is accommodated in a single-person cell. The appeal will therefore be declared unfounded.”
B. Relevant domestic law
1. The Aliens Act
19. As relevant to the case before the Court, the Aliens Act (Vreemdelingenwet 2000) provides as follows:
Section 59
“1. If necessary in the interest of public order or national security, the Minister may order the detention of any alien who:
a. is not lawfully resident [in the Netherlands]; ...”
2. The Aliens Decree 2000
20. As relevant to the case before the Court, the Aliens Decree 2000 (Vreemdelingenbesluit 2000) provides as follows:
Section 5.4
1. Detention based on section 59 ... of the Aliens Act 2000 shall be executed in a police station, a Netherlands Royal Constabulary (Koninklijke Marechaussee) cell, in a remand centre (huis van bewaring) ... The execution of the detention shall not impose further restrictions on the alien’s exercise of his or her basic rights than is necessary for the purpose of this measure and the maintenance of order and safety in the place where [the detention] is put into effect.
2. If the execution of the detention takes place in a police station or a Netherlands Royal Constabulary cell, then as soon as reasonably possible such execution shall be continued in a remand centre. ...
3. Detention shall be terminated as soon as grounds for it no longer exist.”
3. The Prisons Act
21. The framework for the execution of detention based on section 59 of the Aliens Act 2000 is constituted by the Prisons Act (Penitentiaire Beginselenwet), which as relevant to the case before the Court provides as follows:
Section 2
“...
4. Persons subject to the execution of a custodial sentence or measure (vrijheidsstraf of vrijheidsbenenemde maatregel) shall be subjected to no further restrictions than necessary for the purpose of the detention or in the interest of maintaining order or safety within the institution. ...”
Section 9
1. Custodial institutions (inrichtingen) are categorised as remand centres (huizen van bewaring), prisons (gevangenissen) and institutions for systematic offenders (inrichtingen voor stelselmatige daders). ...
2. Remand centres are intended to accommodate:
a. persons in respect of whom an order for detention on remand (voorlopige hechtenis) has been given and who are awaiting trial at first instance;
...
d. persons in immigration detention; ...”
Section 50
“1. If a civil servant or staff member finds that a detainee is involved in acts incompatible with order or security in the institution or with the unimpeded execution of the detention and he intends to report on this in writing to the governor, he shall so inform the detainee.
2. The governor shall decide on the imposition of a disciplinary penalty as soon as possible after the report has been submitted to him. ...”
Section 51
“1. The governor may impose the following disciplinary penalties for the commission of acts as referred to in section 50(1):
a. confinement in a punishment cell or another living space (verblijfsruimte) for no more than two weeks;
...
...
6. If a penalty is imposed, it shall be executed without delay. ...”
22. In the Netherlands, three remand centres are especially reserved for accommodating persons undergoing immigration detention: the Zeist Detention Centre (Detentiecentrum Zeist), the Schiphol (Amsterdam) Airport Detention Centre (Justitëel Complex Schiphol) and the Rotterdam Detention Centre (Detentiecentrum Rotterdam).
COMPLAINTS
23. The applicant complained under Article 6 § 3 (d) of the Convention about the failure to hear defence witnesses and to view videotaped recordings of the incident in the Rotterdam detention centre of which he was alleged to have been ringleader before imposing a disciplinary punishment on him.
24. The applicant also complained under Article 5 §§ 1 (f) and 3 about the lawfulness of his detention in a prison not intended for the detention of persons awaiting deportation, about having been confined in a punishment cell and transferred to “De Schie” without having been brought before a judge, without witnesses having been heard for the defence, and without an appealable decision in written form.
THE LAW
A. Complaint under Article 6 § 3 (d) of the Convention
25. The applicant complained that he had not been allowed to obtain the attendance of witnesses on his behalf and that videotaped recordings of the incident in issue had not been viewed before his confinement in a punishment cell was ordered. He relies on Article 6 § 3 (d) of the Convention, which provides as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
26. In the context of the detention of criminal convicts, the Court has recognised that there exist practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments. Although the applicability of Article 6 under its criminal head fell to be considered under the so-called “Engel criteria” (Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22; see also Öztürk v. Germany, 21 February 1984, § 50, Series A no. 73), which were first developed in a military setting, the Court made “due allowance” for the realities of prison life (see, in particular, Campbell and Fell v. the United Kingdom, 28 June 1984, § 69, Series A no. 80, and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-85, ECHR 2003‑X). In the wake of these judgments, the Court has many times ruled summarily that Article 6 under its criminal head did not apply to issues of prison discipline (see Štitić v. Croatia, no. 29660/03, §§ 51-63, 8 November 2007; Gülmez v. Turkey, no. 16330/02, § 26, 20 May 2008; Enea v. Italy [GC], no. 74912/01, § 97, ECHR 2009; Stegarescu and Bahrin v. Portugal, no. 46194/06, § 34, 6 April 2010; and Marin Kostov v. Bulgaria, no. 13801/07, § 56, 24 July 2012).
27. The Court cannot but recognise that in the context of detention of persons to prevent unauthorised access into the country or to enforce deportation or extradition decisions, similar practical and policy reasons may apply. Since justice cannot stop at the doors of the detention centre for aliens any more than it can at the prison gate (see Campbell and Fell, ibid.), the Court must apply the same test to both forms of detention; it will therefore determine the applicability of Article 6 under its criminal head to the matters complained of in the light of the Engel criteria.
28. In its Engel and Others judgment (loc. cit.), the Court defined these criteria as follows:
“... [T]he Court must specify ... how it will determine whether a given ‘charge’ vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as ‘criminal’ within the meaning of Article 6.
In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the Court expresses its agreement with the Government.
However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the ‘criminal’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so (see, mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 36, last sub-paragraph, and p. 42 in fine).”
29. The Court now turns to the facts of the present case.
30. As a matter of domestic law “acts incompatible with order or security in the institution” are left to be dealt with by the governor (section 50 of the Prisons Act; see paragraph 21 above). There is thus no doubt that domestic law considers them to be disciplinary in nature.
31. As to the nature of the offence, the Court finds it helpful to compare the matters that led to the applicant’s disciplinary punishment with those in issue in Campbell and Fell and Ezeh and Connors. In those judgments, the Court noted that even a “theoretical” possibility of the impugned acts being the subject of concurrent criminal and disciplinary proceedings was a “relevant factor” in the assessment of the nature of the offence although not in itself decisive (see Campbell and Fell, § 71, and Ezeh and Connors, §§ 104 and 106). In the present case, in which no actual injury, physical assault or death threat appears to be in issue (paragraph 13 above; compare and contrast Campbell and Fell, § 11, and Ezeh and Connors, §§ 17 and 25), the Court cannot find that the nature of the offence is such that Article 6 should be held applicable on that ground alone.
32. Turning finally to the “degree of severity of the penalty”, the Court again finds it useful to compare the present case to the cases of Campbell and Fell and Ezeh and Connors. In both the latter cases, the punishment was such that the applicants had to serve considerable additional time in prison (see Campbell and Fell, § 72, and Ezeh and Connors, § 128). In contrast, in the present case the applicant was made to undergo a limited term of cellular confinement that added nothing to the length of his detention – a measure which by its nature, duration and manner of execution cannot be appreciably detrimental, and indeed one expressly found in Ezeh and Connors to constitute a disciplinary alternative to a criminal sanction (loc. cit., § 88).
33. In the light of the above case-law, the Court is of the view that Article 6 under its criminal head is inapplicable in the instant case.
34. Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
B. Complaints under Article 5 §§ 1 (f) and 3
35. The applicant complained of having been placed in a penal institution although he was in detention for the purpose of deportation; of having been confined in a punishment cell without an appealable decision in written form; of having been confined in a punishment cell and transferred to “De Schie” without having been brought before a judge first; and of having had no opportunity to call witnesses for his defence. He relies on Article 5 §§ 1 (f) and 3 of the Convention, which provide 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.
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
36. The Court notes at the outset that the title for the applicant’s detention was constituted throughout by a decision placing him in detention as a person against whom action was being taken with a view to his deportation. It is not in issue in the present case whether the applicant’s detention was, from this perspective, justified in terms of Article 5 § 1 (f).
1. The applicant’s placement in the remand centre within “De Schie”
37. The applicant submitted that, as a person against whom action was being taken with a view to his deportation, he ought not to have been placed in a remand centre intended for persons detained under criminal procedure. As the Court understands it, the applicant alleges that his detention had become arbitrary as from the moment he was placed in a remand centre within the penal institution of “De Schie”.
38. The Court reiterates that the aim of Article 5 as a whole is to protect the individual against arbitrary interference by the State with his or her right to liberty (see, among many other authorities, Saadi v. the United Kingdom [GC], no. 13229/03, § 66, ECHR 2008; A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 230, ECHR 2012; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, ECHR 2016 (extracts)). It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], no. 13229/03, § 164, ECHR 2009, with further references).
39. Turning to the present case, the Court first notes that under domestic law remand centres are intended for the detention of, inter alios, persons in immigration detention (section 9(2)(d) of the Prisons Act, see paragraph 21 above). The Court furthermore notes that three remand centres are especially reserved for accommodating persons undergoing immigration detention (see paragraph 22 above); the existence and availability of these immigration detention centres does not, however, rule out the possibility that persons undergoing immigration detention can be placed in ordinary remand centres.
40. The Court next takes into account that the Appeals Board, establishing the facts and circumstances of the instant case, considered the applicant’s placement in an ordinary remand centre justified. It pointed out that the applicant’s transfer was necessary for legitimate operational reasons, his further stay in the Rotterdam detention centre being no longer a possibility due to his behaviour, and that in the ordinary remand centre which had no separate department for aliens, the applicant’s status as person in immigration detention had been taken into consideration (see paragraph 18 above).
41. In these circumstances, the Court can discern no appearance of any arbitrariness.
42. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. The lack of a decision in written form
43. As the Court understands it, the applicant’s complaint is that the governor’s decision ordering his transfer to “De Schie” was not delivered to him in a form that made it possible for him to challenge it.
44. The irregularity of the decision in issue was established in the domestic proceedings and the applicant’s consequent entitlement to compensation was duly recognised; it remained only for him to seek that compensation from the governor of the Rotterdam detention centre (see paragraphs 13 and 18 above). That being so, and even assuming that an issue could arise under Article 5 of the Convention, the Court is minded to find that the applicant can no longer claim to be a “victim” for purposes of Article 34 of the Convention in this respect (see, among many other authorities, Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003‑XI, and M.A. v. the United Kingdom (dec.), no. 35242/04, ECHR 2005‑VIII).
45. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. The failure to bring the applicant before a judge and hear witnesses for the defence
46. The Court notes, firstly, that Article 5 § 3 applies only to persons arrested or detained in accordance with the provisions of Article 5 § 1 (c), that is, for the purpose of bringing them before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent their committing an offence or fleeing after having done so. The applicant, who was in detention for the purpose of deportation, is not in this category. The rights of the defence, which are guaranteed by Article 6 § 3 of the Convention, are therefore not in issue.
47. Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 July 2018.
Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy