ÖZMEN v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant states that he is İbrahim Özmen, a Turkish national of Kurdish origin, born in 1978. At the time of introduction of the application, the applicant 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 involvement in the offence of unlawfully depriving a person of his of liberty. Whilst in police custody, the applicant’s provisional placement in aliens’ detention (voorlopige vreemdelingenbewaring) was ordered, after he had been heard on this matter. On 24 March 1999, the applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) against the decision to order his provisional placement in aliens’ detention and he requested the court to award him compensation. The applicant was released from custody on 26 March 1999 and handed over to the aliens’ police (vreemdelingenpolitie), who placed him in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet). Subsequently and on the same day, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. As a result of the lodging of this request, the legal basis for his placement in aliens’ detention was changed to Article 26 § 1 (c) of the Aliens Act. On 12 May 1999, following a hearing held on 8 April 1999, the Hague Regional Court sitting in Nieuwersluis rejected the applicant’s appeal of 24 March 1999. It noted at the outset that the applicant did not hold a valid residence permit, that he lacked sufficient means of subsistence and that he had no fixed abode. In these circumstances, it accepted that the suspicions that the applicant would seek ways to evade his expulsion were not unfounded. It further noted that an order for the applicant’s expulsion had been issued. Although the Regional Court found that the hearing of the applicant on the measure of his provisional placement in aliens’ detention had fallen short of the requirements of Article 82 of the Aliens’ Decree (Vreemdelingenbesluit) in that it had been conducted in too routinely a manner and it was not apparent that the applicant had realised what was at issue, it concluded that this had not harmed the applicant’s material interests. On this point, the Regional Court observed that hearings pursuant to Article 82 of the Aliens’ Decree were held so that the person concerned might have an opportunity to put forward facts or circumstances which could lead to the conclusion that the imposition of this measure was not called for. However, at the hearing before the Regional Court of 8 April 1999 it could not be established whether any such facts or circumstances had in fact existed. The Hague Regional Court further held that it had not appeared that it was highly likely that the applicant’s asylum request would be granted. It concluded that the applicant’s placement in aliens’ detention was in accordance with the Aliens Act and, after having balanced all interests involved, could reasonably be regarded as justified. It consequently rejected the applicant’s claim for compensation for the time spent in aliens’ detention. 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. 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.