CASE OF EMIN v. THE NETHERLANDS
No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
6. The applicant, Mr Galib Myumyum Emin, is a Bulgarian national who was born in 1977 and as far as the Court is aware now lives in Bulgaria. 7. The applicant arrived in the Netherlands in November 2004. He never obtained legal residence. On 21 July 2006 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) decided to impose an exclusion order (ongewenstverklaring) on the applicant pursuant to the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000) as he had been convicted of a serious criminal offence and sentenced to imprisonment for three years. 8. The applicant was released from prison on 5 April 2007. That same day the Deputy Minister of Justice (Staatssecretaris van Justitie; the successor to the Minister for Immigration and Integration) ordered the applicant to be taken into aliens’ detention (vreemdelingenbewaring) with a view to his expulsion from the Netherlands. 9. Also on 5 April 2007, the applicant appealed the decision to take him into aliens’ detention to the Regional Court (rechtbank) of The Hague, sitting in ‘s-Hertogenbosch. 10. The applicant was released from aliens’ detention on 11 April 2007 but informed the Regional Court that he wanted to pursue his appeal in order to obtain compensation. In support of his appeal, the applicant argued inter alia that the exclusion order imposed on him had in the meantime become based on incorrect grounds as Bulgaria had since joined the European Union (“EU”) and the criteria for imposing an exclusion order on EU citizens were more stringent. 11. On 23 April 2007 the Regional Court upheld the applicant’s appeal. It held that the Deputy Minister had neglected to initiate activities to expel the applicant from the Netherlands while he was still in prison following his criminal conviction. Furthermore, the Regional Court considered that the Deputy Minister had not assessed, at the time the decision was taken to place the applicant in aliens’ detention, whether the criteria in force for imposing an exclusion order applied to the applicant. For these reasons the Regional Court held that the applicant’s aliens’ detention had been unlawful from the outset. The Regional Court however declined to award compensation to the applicant as he had been convicted of a serious criminal offence and an exclusion order had also been imposed on him. 12. On 25 April 2007 the applicant filed a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the decision of the Regional Court not to award him compensation even though his aliens’ detention had been declared unlawful from the start. 13. On 10 May 2007 the Council declared the appeal inadmissible since, pursuant to article 84 sub d of the Aliens Act 2000, no further appeal lay against a refusal to award compensation. 14. Section 106 of the 2000 Aliens Act (Vreemdelingenwet 2000) provides: “1. If the Regional Court orders the lifting of a measure deprivative of liberty, or if the deprivation of liberty is lifted even before the request for the lifting of that measure is considered, it may grant the alien compensation at State expense. Damage shall include non-pecuniary damage. ...” 15. In so far as the above provision proves insufficient or inappropriate to the purpose, it is also possible for former detainees to seek compensation for a wrongful act, or tort, on the part of public authority (onrechtmatige overheidsdaad) by taking civil proceedings against the State and claiming compensation for damages based on the argument that the detention in question constituted a wrongful act within the meaning of Article 6:162 of the Civil Code. Article 6:162 of the Civil Code provides: “1. A person who commits a wrongful act (onrechtmatige daad) against another which is attributable to him, must repair the damage suffered by the other in consequence. 2. Except where there is a ground of justification, the following acts are deemed to be wrongful: the violation of a right, and an act or omission violating a duty imposed by law or a rule of unwritten law pertaining to proper social conduct. 3. A wrongdoer is responsible for the commission of a wrongful act if it is due to his fault or to a cause for which he is accountable by law or pursuant to generally accepted principles (de in het verkeer geldende opvatting).”