ZALOILO v. THE NETHERLANDS
Inadmissible
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom
1. The applicant, Mr Joeri Borisovitch Zaloilo, was born in 1980 in Tblisi and lives in Schiedam. His nationality is stated to be unknown. He was represented before the Court by Ms H.H.R. Bruggeman, a lawyer practising in Lisse. 3. The applicant was detained for the purpose of deportation in the Rotterdam detention centre, a remand centre accommodating persons in immigration detention. 4. On 25 August 2011 the governor of the detention centre gave a disciplinary decision placing the applicant in solitary confinement for fourteen days. The written confirmation of the decision, handed to the applicant on 28 August 2011, states the following grounds: “You have displayed seriously inflammatory behaviour and incited your fellow detainees to an uprising. You have incited them to disobey the instructions of staff. You have refused, with a number of fellow detainees, to return to your cell. You have tried to prevent your fellow detainees from obeying the instructions of staff. You have seriously intimidated staff and forced them to open the door of the cell to let out one of the detainees who was already locked in.” The term of solitary confinement was to end on 8 September 2011. 5. On 26 August 2011 the applicant submitted a complaint form stating that he had incited no one to rise against the prison staff and requesting the hearing of witnesses to prove it. 6. On 31 August 2011 the applicant, through his lawyer, lodged a formal complaint (beklag) against the solitary confinement decision with the supervisory board (Commissie van Toezicht) of the institution. 7. Also on 31 August 2011 the applicant lodged a request for the suspension of the solitary confinement measure with the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) (hereafter “the Appeals Board”). 8. On 8 September 2011, immediately after the end of his term of solitary confinement, the applicant was transferred to the remand centre (huis van bewaring) within the penal institution “De Schie” in Rotterdam, a regular prison, on the orders of the governor of the Rotterdam detention centre. The decision ordering the transfer was not given in writing. 9. Also on 8 September 2011 the applicant lodged an objection (bezwaar) against the decision to place him in the remand centre within “De Schie”, together with a request for its suspension, with the Appeals Board. 10. On 16 September 2011 the Chairman of the Appeals Board ordered the suspension of the applicant’s placement in the remand centre within “De Schie” on the formal ground that the transfer decision had been given irregularly by the governor of the Rotterdam detention centre instead of by the selection officer (selectiefunctionaris) of the Ministry of Security and Justice. 11. Also on 16 September 2011 an official signing in the joint capacity of selection officer and head of the Bureau for the Coordination of Matters Concerning Aliens (Hoofd Bureau Coördinatie Vreemdelingenzaken) gave an order, effective on the same day, for the applicant to be transferred to the remand centre within “De Schie”. The decision stated the following reasons: “During your stay in the Rotterdam detention centre you have endangered order, peace and quiet and security by inciting to an uprising and by particularly intimidating conduct towards staff.” 12. On 22 September 2011 the applicant, through his lawyer, lodged an objection against this decision also. As relevant to the case before the Court, he alleged a violation of Article 6 of the Convention in that he had not been heard before this decision was taken. 13. It is noted in the decision of the Appeals Board (see paragraph 18 below) that on 7 October 2011 the governor of the Rotterdam detention centre wrote to the applicant recognising that his detention in the remand centre within “De Schie” between 8 September 2011 and 16 September 2011 had not been based on a decision in proper form and that he was entitled to monetary compensation on that account. 14. On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision on the applicant’s objection of 8 September 2011 (see paragraph 9 above). This decision stated that the governor of the detention centre had decided on 25 August 2011 that the applicant should be transferred to the remand centre within “De Schie” in Rotterdam on 8 September 2011, immediately after the end of his term of solitary confinement. However, since the governor had not the competence to give such a decision, a formal decision to this effect – dated, or backdated, 8 September 2011 but not committed in writing – was taken by the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens instead. 15. The applicant’s objection was declared inadmissible as out of time, the decision in issue having been taken on 25 August 2011 and the time-limit for lodging an objection being only seven days. It was added that the objection would have been dismissed as unfounded even if it had been admissible: the applicant had been transferred to a regular remand centre for legitimate operational reasons (om beheersmatige redenen) in view of his misbehaviour. 16. On 24 October 2011 the selection officer cum head of the Bureau for the Coordination of Matters Concerning Aliens of the Ministry of Security and Justice gave a decision dismissing the applicant’s objection of 16 September 2011 as unfounded. As relevant to the case before the Court, it included the following reasoning: “I have been informed by the governor of the Detention Centre that the person concerned has played an active part in the uprising on 25 August 2011 in the Rotterdam Detention Centre. The person concerned (was among those who) created the uprising. He displayed inflammatory behaviour and repeatedly incited other detainees to rise up. He has refused to follow instructions given by staff and has encouraged others to do the same. He has forced the staff in a threatening way to release detainees who had been already locked in. The staff has complied in order to prevent further escalation. The person concerned has seriously intimidated the staff and seriously endangered order and security. The person has been placed in a regular remand centre for operational reasons in view of the disturbance he has caused in the Rotterdam detention centre, his prison history (which has also led to his being declared an undesirable alien (ongewenste vreemdeling)), and because he escaped from the Zeist detention centre on 7 January 2011. In taking a placement or transfer decision I may reasonably trust the relevant information given me by the governor of the institution. My competence to transfer the person concerned to a different institution is not affected by the fact that the lawfulness of the governor’s decision, i.e. the disciplinary measure, is not yet established in law.” 17. On 31 October 2011 the applicant, through his lawyer, appealed against the latter decision to the Appeals Board. As relevant to the case before the Court, he denied any wrongdoing; he complained of failures to hear staff of the Rotterdam detention centre and fellow detainees as witnesses and of the failure to make videotaped recordings of the incident available for viewing. 18. The Appeals Board gave its decision on 23 January 2012. It dismissed the applicant’s appeal. As to the fact that the applicant’s placement in the remand centre within “De Schie” between 8 and 16 September 2011 had not been based on any decision, the Appeals Board took note of the governor’s letter of 7 October 2011 recognising that fact (see paragraph 13 above) and referred the applicant to the governor of the Rotterdam detention centre himself for the compensation to which he was entitled. As relevant to the case before the Court, its decision further read as follows: “4.2. ... The complainant [i.e. the applicant], on whom immigration detention has been imposed, belonged to the category of detainees for whose accommodation remand centres are intended. ... 4.4. A sufficient case has been made out on the basis of the submissions made on appeal as well as the reports drawn up about the complainant that the behaviour of the complainant could justify his transfer to a different institution. 4.5. In situations that so require, such as the present, in which a further stay in a detention centre intended specifically for aliens is no longer a possibility, it is permitted, given the circumstances of the particular case, to place the detained alien concerned in an ordinary remand centre. The complainant has brought his transfer to the remand centre upon himself by his behaviour. In the remand centre, which has no separate department for aliens, the complainant’s status of alien is (as is apparent from the file) taken into consideration inasmuch as he is accommodated in a single-person cell. The appeal will therefore be declared unfounded.” 19. As relevant to the case before the Court, the Aliens Act (Vreemdelingenwet 2000) provides as follows: “1. If necessary in the interest of public order or national security, the Minister may order the detention of any alien who: a. is not lawfully resident [in the Netherlands]; ...” 20. As relevant to the case before the Court, the Aliens Decree 2000 (Vreemdelingenbesluit 2000) provides as follows: 1. Detention based on section 59 ... of the Aliens Act 2000 shall be executed in a police station, a Netherlands Royal Constabulary (Koninklijke Marechaussee) cell, in a remand centre (huis van bewaring) ... The execution of the detention shall not impose further restrictions on the alien’s exercise of his or her basic rights than is necessary for the purpose of this measure and the maintenance of order and safety in the place where [the detention] is put into effect. 2. If the execution of the detention takes place in a police station or a Netherlands Royal Constabulary cell, then as soon as reasonably possible such execution shall be continued in a remand centre. ... 3. Detention shall be terminated as soon as grounds for it no longer exist.” 21. The framework for the execution of detention based on section 59 of the Aliens Act 2000 is constituted by the Prisons Act (Penitentiaire Beginselenwet), which as relevant to the case before the Court provides as follows: “... 4. Persons subject to the execution of a custodial sentence or measure (vrijheidsstraf of vrijheidsbenenemde maatregel) shall be subjected to no further restrictions than necessary for the purpose of the detention or in the interest of maintaining order or safety within the institution. ...” 1. Custodial institutions (inrichtingen) are categorised as remand centres (huizen van bewaring), prisons (gevangenissen) and institutions for systematic offenders (inrichtingen voor stelselmatige daders). ... 2. Remand centres are intended to accommodate: a. persons in respect of whom an order for detention on remand (voorlopige hechtenis) has been given and who are awaiting trial at first instance; ... d. persons in immigration detention; ...” “1. If a civil servant or staff member finds that a detainee is involved in acts incompatible with order or security in the institution or with the unimpeded execution of the detention and he intends to report on this in writing to the governor, he shall so inform the detainee. 2. The governor shall decide on the imposition of a disciplinary penalty as soon as possible after the report has been submitted to him. ...” “1. The governor may impose the following disciplinary penalties for the commission of acts as referred to in section 50(1): a. confinement in a punishment cell or another living space (verblijfsruimte) for no more than two weeks; ... ... 6. If a penalty is imposed, it shall be executed without delay. ...” 22. In the Netherlands, three remand centres are especially reserved for accommodating persons undergoing immigration detention: the Zeist Detention Centre (Detentiecentrum Zeist), the Schiphol (Amsterdam) Airport Detention Centre (Justitëel Complex Schiphol) and the Rotterdam Detention Centre (Detentiecentrum Rotterdam).