BAH v. THE NETHERLANDS
Inadmissible
David Thór Björgvinsson
The applicant, Mr Adul Bah, claims to be a Sierra Leonean national who was born in 1980. At the time when the application was lodged he was held in detention in Soesterberg. He is represented before the Court by Mr P.A. Blaas, a lawyer practising in ‘s-Hertogenbosch. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant entered the Netherlands approximately two years before the events complained of. He lodged a request for asylum and was met with a refusal. He remained in the Netherlands as an illegal alien. On 3 March 2004 the applicant was apprehended. An officer of the Aliens Police (Vreemdelingenpolitie), acting on behalf of the Minister for Aliens Affairs and Integration (Minister voor Vreemdelingenzaken en Integratie) and in accordance with Article 59 of the 2000 Aliens Act (Vreemdelingenwet), placed the applicant in aliens’ detention (vreemdelingenbewaring) for expulsion purposes on public order grounds, namely the suspicion that the applicant was seeking ways to evade expulsion as he had no identity papers, he had failed to leave the country within the time allowed him for that purpose, he had no fixed abode, was suspected of having committed a criminal act, had no adequate means of subsistence and was not lawfully staying in the Netherlands. The Regional Court of The Hague was notified by the Minister of the detention order on 5 March 2004. In accordance with Article 94 of the 2000 Aliens Act, this counted as an automatic appeal. This notification-appeal was heard before the Regional Court on 12 March 2004. On 18 March 2004 a single-judge Chamber of the Regional Court gave a decision dismissing the appeal. The decision noted that the applicant had relied on the European Court’s judgment in the case of Shamsa v. Poland (nos. 45355/99 and 45357/99, 27 November 2003), but held that, given the provisions of Article 94 of the 2000 Aliens Act, there was an adequate guarantee that the judge would take a speedy decision about the lawfulness of the applicant’s detention and order his release if his detention was found unlawful. Given the reasons on which it was based, the applicant’s placement in aliens detention was found justified, and it was further found that the Netherlands authorities were pursuing the applicant’s effective removal from the Netherlands with the required diligence, given that in the meantime the procedure for obtaining a laissez-passer from the Sierra Leonean authorities had been set in motion. The applicant lodged an appeal against the decision of 18 March 2004 with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) on 22 March 2004. Again relying on the Court’s Shamsa judgment, he only raised one complaint, namely that the Regional Court had unjustly failed to acknowledge that persons placed in aliens’ detention must – like persons detained in the context of criminal proceedings – be heard promptly, that is no later than three days and fifteen hours, before an independent tribunal. As he had only been heard after ten days, the Regional Court should have found this delay too long and, consequently, should have ordered his release. On 13 May 2004, following a hearing held on 14 April 2004, the Administrative Jurisdiction Division dismissed the further appeal and upheld the Regional Court’s decision. This ruling, in so far as relevant, reads: “The appellant has been placed in aliens’ detention for expulsion purposes, in accordance with Article 59 § 1 (a) of the 2000 Aliens Act. Therefore and on a statutory basis, an expulsion procedure within the meaning of Article 5 § 1 (f) of the Convention was pending against him. Pursuant to Article 94 §§ 1 and 2 of the 2000 Aliens Act, the placement in aliens’ detention at issue has been submitted for examination before the Regional Court within a delay of ten days. The judgment of the European Court of Human Rights [in the case of Shamsa v. Poland] of 27 November 2003, invoked by the [appellant], concerns the continued detention of aliens against whom an expulsion or extradition procedure was no longer pending, for which continued detention there was no legal basis. Consequently, the detention had lost its lawful character and thus did not fall within the scope of one of the permissible grounds of deprivation of liberty as listed in an exhaustive manner in Article 5 § 1 of the Convention. In this light, the Administrative Jurisdiction Division understands the judgment and in particular the reasoning set out in paragraph 59 in the sense that the Court – in assessing such detention – incorporates the rationale of Article 5 taken as a whole and, in that context, also considers relevant the guarantees for legal protection and legal certainty as incorporated in the third paragraph of [Article 5 of the Convention]. Noting this as well as the [decisions on admissibility taken by] the Court in the case Leaf v. Italy [no. 72794/01, 27 November 2003] and Vikulov and Others v. Latvia [16870/03, 25 March 2004], the Administrative Jurisdiction Division is of the opinion that the Court did not have the intention to consider Article 5 § 3 applicable by analogy to the detention of aliens in accordance with [Article 5 § 1 (f) of the Convention], which would also be at variance with the wording of [Article 5 § 3 of the Convention]. In this connection the Administrative Jurisdiction Division also finds of relevance that the Court, in its [decision on admissibility] in the case of Tekdemir v. the Netherlands (no. 46860/99, 1 October 2002) found that there was no reason for holding that there was a violation of Article 5 § 4 of the Convention, as the alien concerned who had been placed in aliens’ detention under the Aliens Act [as in force until 1 April 2001] could at any point in time challenge the lawfulness of [that] detention before the judge who should determine [this issue] speedily. The Court did not conduct an additional examination of the matter under [Article 5 § 3 of the Convention]. In accordance with Article 94 § 1 and Article 96 §§ 1 and 5 of the 2000 Aliens Act an alien can also at present file an appeal at any point in time against a decision imposing deprivation of liberty. The Administrative Jurisdiction Division therefore agrees with the Regional Court that the applicant’s reliance on [the Court’s Shamsa judgment] fails...” This ruling was published in the Immigration Law Reports (Jurisprudentie Vreemdelingenrecht; “JV”) 2004/290. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet; “the 1965 Aliens Act”). Further rules were set out in the 1966 Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the 1965 Aliens Act, unless indicated otherwise in this Act. On 1 April 2001, the 1965 Aliens Act and the pertaining regulations were replaced by the 2000 Aliens Act, the 2000 Aliens Decree, the 2000 Regulation on Aliens and the 2000 Aliens Act Implementation Guidelines. Unless indicated otherwise in the 2000 Aliens Act, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. At the time of the events complained of, the 2000 Aliens Act, as relevant to the case, provided as follows: “1. If necessary in the interests of public order or national security so requires, [the competent Minister] may, for the purpose of expulsion (uitzetting), order the detention of an alien who: (a) is not lawfully resident; ...” “In deviation from Article 37 § 1 of the Act on the Council of State (Wet op de Raad van State), no appeal lies against a decision of the Regional Court ...: a. about a decision or act based on ... [Article 59 of the 2000 Aliens Act] ...” “1. Our [competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty as referred to in Article ... 59 ... [of the 2000 Aliens Act] no later than the third day after communication of the decision, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty. The appeal shall also constitute a request for the award of damages. 2. The Regional Court shall immediately fix the time of a hearing. The hearing shall take place no later than the seventh day after the receipt of the written statement of appeal or the notification. ... In deviation from Article 8:42 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged. 3. The Regional Court shall give judgment orally or in writing. A written judgment shall be given within seven days of the conclusion of the hearing. In deviation from Article 8:66 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged. 4. If the Regional Court finds on appeal that the application or implementation of the decision [to impose deprivation of liberty] is contrary to this Act or is – on consideration of all the interests involved – not reasonably justified, it shall accept the appeal. In such a case the Regional Court shall order that the deprivation of liberty be terminated or the manner of its implementation altered.” Article 95 “1. In deviation from Article 84 under a., a ruling given by the Regional Court as referred to in Article 94 § 3 can be appealed before the Administrative Jurisdiction Division of the Council of State. ...” Article 96 “1. In case the Regional Court has rejected as unfounded an appeal within the meaning of Article 94 and the deprivation of liberty continues, Our Minister shall notify the Regional Court of the continuation of the deprivation of liberty no later than four weeks after the ruling within the meaning of Article 94 has been given, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the decision to prolong the decision imposing deprivation of liberty. ” Article 94 was amended with effect from 1 September 2004. It now requires the Regional Court to be notified of the detention decision within twenty-eight days after its issuance unless the alien has lodged an appeal first, and the hearing of the appeal must take place no later than fourteen days after the Regional Court has received the written statement of appeal or the Minister’s notification. This amendment meant in practice a revival of the legal situation that existed before 1 April 2001 in respect of these two time-limits under the former 1965 Aliens Act and pertaining regulations (for further details, see Tekdemir v. the Netherlands (dec.), nos. 46860/99 and 49823/99, 1 October 2002, under “Relevant domestic law and practice”). Article 69 § 3 of the 2000 Aliens Act stipulates that there is no time-limit for filing an appeal within the meaning of Articles 94 and 96 of the 2000 Aliens Act and that an appeal referred to in Article 95 must be filed within one week. Accordingly, a person placed in aliens’ detention can in principle file as many appeals against this placement as he or she 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. Pursuant to Article 84 of the 2000 Aliens Act, no appeal to the Administrative Jurisdiction Division lies against a decision by the Regional Court on such a subsequent appeal (Administrative Jurisdiction Division, 1 November 2006, case no. 200607626/1). The hearing and determination of such a subsequent appeal are subject to the same mandatory time-limits as those for a first appeal (Regional Court of The Hague sitting in Groningen, 19 June 2006, case no. AWB 06/22632). According to a ruling given by the Administrative Jurisdiction Division on 11 February 2005 (JV 2005/172), the time-limit set out in Article 94 § 2 of the 2000 Act is of a strict mandatory nature. In the event that this time-limit has not been respected, the placement in aliens’ detention becomes unlawful on the day following the day on which this time-limit expired. As there is no statutory fixed maximum duration of a placement in aliens’ detention for expulsion purposes, an alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time provided there are reasonable prospects for expulsion within the foreseeable future. However, it has been established in domestic caselaw 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 in keeping 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 when an exclusion order (ongewenstverklaring) has been imposed or where the alien concerned 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 or her control (see, Legal Uniformity Division (Rechtseenheidskamer) of the Regional Court of the Hague, case no. AWB 97/4849, 21 August 1997; and the Regional Court of The Hague sitting in Groningen, case no. AWB 06/22632, 19 June 2006).