VAN MELLE AND OTHERS v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
A list giving the names of the applicants is appended to the present decision. All applicants were represented before the Court by Mr N.M.P. Steijnen, a lawyer practising in Zeist. and apparent from documents available to the public, may be summarised as follows. In the night of 26 to 27 October 2005 a fire broke out in a detention centre at Schiphol (Amsterdam) Airport. The detainees were aliens due to be deported to other countries. Eleven detainees were killed, fifteen persons (mostly detainees) were injured. Surviving detainees were taken to other detention facilities. Technical investigations led to the finding that one of the detainees had started the fire by negligently tossing a burning cigarette into a waste paper basket. Thirty of the original applicants wrote to the Public Prosecutor (officier van justitie) of the Regional Court (rechtbank) of The Hague on 21 December 2005 asking for the prosecution of the then Minister of Justice and Minister for Immigration and Integration, who in their submission bore responsibility for the events complained of. On 17 March 2006 the Public Prosecutor informed the applicants of his refusal, the Regional Court lacking competence in the matter (Article 119 of the Constitution, see below). On 19 March 2006 the applicants lodged a complaint about the failure to prosecute with the Court of Appeal (gerechtshof) of The Hague. On 17 November 2006 the Court of Appeal gave a decision finding that it was not competent to order the prosecution of Government ministers and referring the matter to the Supreme Court (Hoge Raad). On 29 June 2007 the Procurator General gave an advisory opinion expressing doubts as to whether all the applicants could be found to have a sufficient interest in the case. Be that as it might, under international law – including Article 3 under its procedural head – it was left to domestic law to appoint the competent authority; it was therefore not incompatible per se with Article 3 of the Convention to make the prosecution of the two ministers conditional on a Royal Decree or a decision of the Lower House of Parliament. On 19 October 2007 the Supreme Court gave a decision noting the absence of any Royal Decree or decision of the Lower House of Parliament and declaring the applicants’ complaint about the failure to prosecute inadmissible. This brought the domestic proceedings to an end. In the meantime, an independent committee (Onderzoeksraad voor Veiligheid, Investigation Committee for Safety Issues) undertook an investigation based on the following two questions: Firstly, why were eleven detainees killed in the fire? Secondly, how were the other persons involved received and taken care of afterwards? It submitted its report to the Lower House of Parliament on 21 September 2006. The report itself ran to 188 pages, not including 128 pages of appendices and one page of recommendations. On the first point, the report found fault with the following three Government institutions for having insufficient regard to fire safety: the Ministry of Justice, in particular the Correctional Institutions Agency (Dienst Justitiële Inrichtingen), responsible for laying down the applicable technical specifications and for securing the safety of the detainees; the Ministry of Housing, Spatial Planning and the Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer), and in particular the Government Buildings Agency (Rijksgebouwendienst), responsible for ordering the detention centre to be built and as owner of the building; the Municipality of Haarlemmermeer, within whose territory the detention centre was located, responsible for issuing the necessary building licences and supervising compliance and for the local fire services. Primary responsibility was imputed to the Correctional Institutions Agency, although each of the three parties had shown a tendency to count too heavily on the other two doing what was needed. As a technical matter, it was found after extensive testing that the fire could well have been started by a cigarette end and that technical failure was so unlikely a cause as to be excluded. On the second point, the report criticised certain shortcomings in the care given to the surviving detainees following relocation but noted that some of the detainees had themselves failed to co-operate, some for example claiming false identities. The report made recommendations to the above three Government institutions and the Minister of the Interior and Kingdom Relations (Binnenlandse Zaken en Koninkrijksrelaties). The Ministry for Immigration and Integration was not among the Government bodies found at fault. The Minister of Justice and the Minister of Housing, Spatial Planning and the Environment both resigned on grounds of political responsibility shortly after this report was published. The original applicants are a non-governmental organisation (Liga voor de Rechten van de Mens, “League for Human Rights”) and thirty-six individuals. Of the latter, two claim kinship with individuals killed in the fire; they are applicants no. 2, Ms Nevin Igli, sister-in-law of the late Mr Mehmet Ava, and no. 3, Mr Erol Sahin, cousin of the late Mr Kemal Sahin. One, applicant no. 6, Ms Christiana Alberdina Kondehson, claims kinship with a survivor, Mr Oye Adepeju. The original applicants were later joined by former detainees who had survived the fire, namely applicants nos. 38 and 39, Mr Muhammed Simsek and Mr Chafik Chnachi (letter of 30 October 2008), and applicants nos. 40 and 41, Mr Mustafa Moujahid and Mr Mustafa el Boukhari (letter of 12 November 2008). The detainee found to have set the waste paper basket alight, Mr Ahmed Issa Al-jeballi, was among the survivors. He was tried for having started the fire through criminal negligence and convicted both at first instance and on appeal; the conviction and sentence are not yet final as both the prosecution and Mr Al-jeballi himself have appealed on points of law to the Supreme Court. Mr Al-jeballi has also joined the case as an applicant (no. 42, letter of 20 February 2009). At the time of the events complained of, relevant provisions of the Code of Criminal Procedure provided as follows: “1. If the perpetrator of a punishable act is not prosecuted, or if the prosecution is not pursued to a conclusion, then anyone with a direct interest (rechtstreeks belanghebbende) may lodge a written complaint with the Court of Appeal within whose area of jurisdiction the decision has been taken not to prosecute or not to pursue the prosecution to a conclusion. ...” “If the complaint is not within the competence of the Court of Appeal, that court shall declare that it lacks competence. If the Court of Appeal considers that another Court of Appeal or ... the Supreme Court has competence, it shall refer the case to the court which it considers to have competence, at the same time forwarding the written complaint and a copy of its decision.” Article 119 of the Constitution for the Kingdom of the Netherlands Constitution (Grondwet voor het Koninkrijk der Nederlanden) provides as follows: “Members of Parliament, Ministers and Deputy Ministers shall be tried for crimes committed in their official capacity by the Supreme Court, even after their resignation. The prosecution order shall be given by Royal Decree (koninklijk besluit) or by a decision of the Lower House of Parliament.” No such prosecution has ever been brought.