CALISKAN v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant, Efraym Caliskan, is a Turkish national of Kurdish origin, born in 1968 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. On 16 February 1999, following the apprehension of the Kurdish leader Abdullah Öcalan by the Turkish authorities, a protest demonstration took place in The Hague in the course of which protesters occupied the residence of the Greek Ambassador and members of the Ambassador's household were prevented from leaving the premises. On 17 February 1999, the applicant was arrested and subsequently detained in police custody (inverzekeringstelling) on suspicion of having been involved in the events in the residence of the Greek Ambassador. The applicant was released from custody on 23 March 1999 after having been served with an indictment to stand trial on charges in relation to the events in the Greek Ambassador's residence. On the same day, he was handed over to the aliens' police (vreemdelingenpolitie). He was subsequently placed in aliens' detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet). At some unspecified point in time, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. This request was rejected by the State Secretary of Justice (Staatssecretaris van Justitie) at an unspecified point in time. The applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) against the State Secretary's refusal of his request for asylum. As the applicant had been placed in aliens' detention he was not required, like asylum seekers not placed in such detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. The applicant further requested the Hague Regional Court for an injunction on his expulsion pending the appeal proceedings. In a decision taken on 31 March 1999, the Hague Regional Court rejected an appeal filed by the applicant against his placement in alien's detention. On 23 April 1999, the applicant filed a second appeal with the Hague Regional Court against his placement in aliens' detention. On 19 May 1999, the Hague Regional Court rejected the applicant's appeal against the State Secretary's decision to reject his request for asylum. It further rejected the applicant's request for an injunction on his expulsion. On 26 May 1999, following a hearing held on 25 May 1999, the Hague Regional Court rejected the applicant's second appeal against his placement in aliens' detention. Insofar as relevant, it held: “The Regional Court considers at the outset that the lawfulness of the measure of placement in aliens' detention has, as such, already been determined in its decision of 31 March 1999. The present appeal concerns the question whether, after a balancing of all interests involved, a further continuation of the placement should reasonably be considered as unjustified. The Regional Court is of the opinion that it cannot be said that there are no real prospects for expulsion within a reasonable time. On behalf of the <State Secretary> it has been submitted that the alien will be presented to the Turkish <consular> authorities at short notice, given that his request for an injunction in connection with his request for entry to the Netherlands as a refugee or on humanitarian grounds was rejected on 19 May 1999 and the appeal ... declared illfounded. The Regional Court sees no reason to find that <the State Secretary> is proceeding with insufficient diligence. The Regional Court further finds that <the State Secretary>, pending the alien's presentation to the Turkish authorities, can reasonably adopt the position that the alien's placement in aliens' detention should be maintained. As to the complaint of the alien's representative that <the State Secretary> has given undertakings to the effect that the issue of expulsion of Kurds who are being prosecuted for their alleged participation in the occupation of the Greek Ambassador's residence in The Hague will only be addressed once the criminal proceedings have come to an end, the Regional Court considers as follows. It appears neither from the case-file nor the oral submissions in the present case that <the State Secretary> has made solid and legally binding undertakings as to the expulsion of persons who occupied the Greek Ambassador's residence. Neither can such an undertaking be read into the replies given by <the State Secretary> to questions of members of the Lower House of Parliament. The Regional Court further does not perceive a need for the alien who has been placed in aliens' detention to be allowed to remain in the Netherlands pending his trial. After his expulsion, the alien may apply for a visa in order to attend his trial, as has been indicated at the hearing by the representative of <the State Secretary>. Having regard to the above, the Regional Court considers that the appeal is illfounded. The placement in aliens' detention will not be lifted. Having regard to Article 34j of the Aliens Act there is no reason to award compensation.” On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsions of Turkish nationals of Kurdish origin. On the same day, the applicant was released from aliens' detention. On 29 September 2000, the applicant's representative informed the Court that the applicant, following his release on 31 August 1999, had gone to Germany for a family visit. The applicant's representative further stated that the applicant had been apprehended, detained and expelled from Germany to Turkey despite the fact that there were asylum proceedings ongoing in the Netherlands. According to his representative, the applicant was detained in Turkey and tortured for a number of days. Article 26 of the Aliens Act, insofar as relevant, provides: “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 ground 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 <of the Aliens Act>, 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. ...” An alien whose expulsion has been ordered can, in principle, remain in aliens' detention for an unlimited period of time. The lawfulness of a placement in aliens' detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens' detention be terminated. It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that 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, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control. Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, 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 detention for expulsion purposes. Furthermore, an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127) There is no time-limit for the filing of an appeal against a decision of placement in aliens' detention and in principle a person placed in aliens' detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens' detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens' detention as from the date of the last judicial decision taken on this point. On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend until 15 August 1999 its examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, in view of a recent report of one such asylum seeker having encountered serious problems after his expulsion to Turkey. As the veracity of this report was not certain, the Minister of Foreign Affairs had been requested to investigate the matter and to submit his findings as to the origin, background and veracity of the report before 15 August 1999. On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin. On 16 December 1999, the State Secretary informed the Dutch Parliament that the results of an investigation into the facts on the basis of which the expulsion of Turkish nationals of Kurdish origin had been temporarily suspended had led to the lifting of that suspension.