SOLHAN v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is a Turkish national of Kurdish origin, born in 1965 and, at the time of the introduction of the application, 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 12 October 1998, the applicant, his spouse and their two daughters left Turkey for an unspecified destination somewhere in Europe. In the course of their journey, one of the applicant’s daughters died of suffocation in the truck in which they were hiding. The applicant’s spouse and the other daughter returned to Turkey in order to bury the deceased child there. The applicant continued his journey. On 28 October 1998, the applicant and seventeen others, who were found concealed in a vehicle bound to leave the Netherlands for the United Kingdom, were arrested by the Royal Constabulary (Koninklijke Marechausee) on suspicion of being illegal aliens. On 29 October 1998, after a verification of his identity, nationality and residence title, the applicant was placed in aliens’ detention for the purposes of expulsion (vreemdelingenbewaring) under Article 26 § 1 (b) and (c) of the Aliens Act (Vreemdelingenwet). On the same day, the applicant applied for asylum or, alternatively, a residence permit on humanitarian grounds. On 16 November 1998, the applicant – with the assistance of an interpreter – was interviewed by an official of the Ministry of Justice in relation to the grounds for his asylum request. The applicant stated, inter alia, that as from 1994 he had made propaganda for the pro-Kurdish HADEP party and that as from 1995, being a pharmacist, he had provided the PKK with medicines on a regular basis. His brother, a PKK member since 1989, had been arrested in 1995 and was detained since. Between January 1997 and February 1998, he himself had been arrested several times. After having been kept in detention for short periods, he had been released each time. After the arrest in July 1998 of a PKK member who had had medicines from the applicant’s pharmacy in his possession, the applicant and his family left their home town for İstanbul. During his stay in İstanbul, the applicant learned that his pharmacy had been destroyed by a bomb by the Turkish authorities. The applicant concluded therefrom that the arrested PKK member had given his name to the Turkish authorities. On 18 November 1998, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request for asylum or a residence permit. The State Secretary doubted the veracity of the applicant’s account and in this respect noted, inter alia, that the applicant, who stated he was a pharmacist, could only name four kinds of medicines amongst which aspirin, that he was unable to state the name of the medicine he claimed to use for treatment of his mental condition and that he was unable to state the name of the wholesaler from whom he would have bought medicines for his pharmacy. The State Secretary did not find it established that the applicant would face a real danger of treatment contrary to Article 3 of the Convention if be expelled to Turkey. In accordance with Article 18a of the Aliens Act, the State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers’ centre and that this order was suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than by a departure from the Netherlands. On 19 November 1998, the legal basis for the applicant’s placement in aliens’ detention was altered from Article 26 § 1 (b) and (c) of the Aliens Act into Article 26 § 1 (a) of this Act. On the same day his expulsion from the Netherlands was ordered. On 20 November 1998, the applicant filed an appeal with the Administrative Law Division (Sector Bestuursrecht) of the Hague Regional Court (Arrondissementsrechtbank) sitting in ‘s-Hertogenbosch against the State Secretary’s decision of 18 November 1998. He further requested the Regional Court for an injunction on his expulsion pending the appeal proceedings. As he was placed in aliens’ detention he was not required, like asylum seekers not placed in aliens’ detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. At two unspecified points in time the applicant started a hunger strike in order to obtain access to the asylum procedure for persons not placed in aliens’ detention. His first hunger strike lasted eight days and his second five days. On 24 November 1998, the State Secretary of Justice sent a notification to the Administrative Law Division of the Hague Regional Court sitting in ‘s-Hertogenbosch that the applicant had been in aliens’ detention for a period of four weeks without having filed an appeal against the decision of his placement in aliens’ detention. This notification is considered on a par with a first appeal under Article 34a § 2 of the Aliens Act. In its decision of 8 December 1998, following a hearing held on 7 December 1998 in the course of which the applicant was represented by a lawyer, the Regional Court rejected the appeal filed by way of a notification. It considered that the applicant’s arrest and placement in aliens’ detention was lawful under the relevant statutory provisions. It held that there were serious grounds for believing that the applicant would seek to find ways of avoiding his expulsion. The Regional Court considered at the outset that there were serious doubts as to the veracity of the applicant’s account that he had come to the Netherlands to apply for asylum, as at the moment of his arrest he had been at the point of leaving the Netherlands. The Regional Court found it established that he had intentionally sought to evade any form of control of entry of aliens and had sought to leave the Netherlands in an uncontrolled manner. In these circumstances, the Regional Court did not find that the applicant’s request for asylum opposed (a continuation of) his placement in aliens’ detention. Noting that, at the time of his arrest and to date, the applicant did not hold a valid residence title, did not have any identity papers and did not have sufficient means of existence, the Regional Court found that there were sufficient grounds to justify the measure of placement in aliens’ detention. It finally considered that the applicant’s request for an injunction on his expulsion pending the appeal proceedings on the refusal to grant him asylum or a residence permit did not as such affect the lawfulness of his placement in aliens’ detention as pending the determination of this request it could not be said that there were no prospects of expulsion. Moreover, there were no indications in the applicant’s case that it was highly likely that his request for an injunction would be successful. In this respect the court further noted that the injunction request would be dealt with in the near future. In the court’s opinion, there were as yet realistic perspectives for the applicant’s expulsion and the authorities were sufficiently diligent in their activities aimed at the applicant’s expulsion. On 14 April 1999, the applicant and a unspecified number of others placed in aliens’ detention started a third hunger strike in order to obtain access to the asylum procedure for persons not placed in aliens’ detention. He claims that during this hunger strike, that lasted until 7 May 1999, he was denied recreational rights that other persons placed in aliens’ detention enjoyed, such as access to the library. He further claims that he was not allowed to buy a telephone card or cigarettes and that medical care was hardly provided. Also, after he had ceased his hunger strike, no medical care was provided although he did complain of pain. On 20 April 1999, following a hearing held on 26 February 1999 in the course of which the applicant was represented by a lawyer, the President of the Regional Court rejected the applicant’s appeal. The President held that, although the general (human rights) situation in (in particular south-east) Turkey could be called bad, the mere belonging to the Kurdish community in Turkey is not sufficient for a finding of persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees. The President found that it had not been established that the applicant had founded reasons to fear persecution within the meaning of the 1951 Convention. The President further considered that the fact that the applicant has only applied for asylum following his arrest did cast doubts as to the reliability of his statements. The President noted that the applicant, who alleged to be a pharmacist, could only name four kinds of medicine and was unable to state the name of the wholesaler in İstanbul from whom he would have bought medicines. The President further considered as implausible the applicant’s claim that pharmacists in Turkey do not necessarily have to be professionally qualified. Since the applicant had failed to substantiate his account with any documents, the President held that the above seriously undermined the credibility of the applicant’s account. The President noted that the applicant’s activities for HADEP were only of a marginal nature and that the applicant had stated that his various arrests were not linked to his brother’s activities for the PKK but were based on his own activities for the PKK. Further noting that, shortly after each arrest, the applicant had been unconditionally released, the President held that there was no indication that the applicant was being considered by the Turkish authorities as an important political opponent. The President further did not find it plausible that the Turkish authorities would consider the fact that the applicant had provided the PKK with medicines as a political act, since a pharmacist always runs the risk that medicines are being provided to PKK members. The President further found no causal link between the bomb attack on the applicant’s pharmacy and his activities for the PKK and considered that it was more plausible that this was linked to the general security situation in south-east Turkey.  The President also noted that the alleged events had not given the applicant cause to leave Turkey immediately as he had remained in İstanbul until 12 October 1998 without having encountered any problems from the side of the Turkish authorities. As to information contained in a letter of 8 April 1999 from the Kurdish Human Rights Project in London to the effect that the applicant was an active supporter of HADEP, that the Turkish authorities were aware of these activities and that it was extremely likely that the applicant, if returned to Turkey, would be arrested and detained with a very high risk of being ill-treated and/or tortured during his detention, the President held that this information could not be considered as coming from an objective source. The President concluded that it had not been established that the applicant, if expelled to Turkey, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention. In these circumstances, the President did not find it necessary to determine the applicant’s request for an injunction on his expulsion. On 12 May 1999 the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds. On 17 May 1999 the applicant was interviewed by an official of the Ministry of Justice in respect of his second asylum request. According to the written record of this interview, the applicant stated that he could understand the assisting interpreter very well, that he had no new facts or circumstances to adduce in support of his new asylum request and that he had filed this new request upon the advice of his new lawyer who considered that the written record of the applicant’s interview held on 16 November 1998 did not correctly reflect the applicant’s account. By letter of 13 May 1999, the applicant’s new lawyer sent comments on the written record of the applicant’s interview held on 16 November 1998 to the State Secretary of Justice. In this letter a number of examples were given of discrepancies between what the applicant had allegedly said and what had been recorded. According to the applicant’s lawyer, these discrepancies were the result of inadequate interpretation. On 18 May 1999, the applicant’s new lawyer submitted comments to the written record of the interview held on 17 May 1999. By letters of 20 May 1999, the applicant’s lawyer filed complaints with the Minister of Justice and the National Ombudsman about the asylum proceedings conducted in the applicant’s case. In these letters, the applicant’s lawyer complained in particular about the quality of interpretation during the applicant’s interviews in relation to his two asylum requests in that this interpreter was allegedly unable to communicate adequately in either Turkish or Kurdish. On 3 June 1999 the State Secretary of Justice rejected the applicant’s second request for asylum or a residence permit. The State Secretary noted that the comments submitted on 13 and 18 May 1999 related to the first asylum proceedings and could not be regarded as new relevant facts and circumstances. In this respect, the State Secretary noted that the applicant’s initial lawyer had already addressed the contents of the record on the interview held on 16 November 1998 and had raised the same points as the ones that were now being raised by the applicant’s new lawyer in relation to this interview. These subject matters had been examined both in the proceedings on the applicant’s first request for asylum and in the proceedings on the lawfulness of the applicant’s placement in aliens’ detention. The applicant’s new asylum request was, therefore, inadmissible. The State Secretary of Justice further held that no facts or circumstances had appeared on the basis of which the applicant would qualify for a residence permit on humanitarian grounds and that it had not been established that there was a real risk that the applicant, if returned to his country of origin, will be subjected to treatment contrary to Article 3 of the Convention. Having found no reasons on grounds of which the applicant should be given the possibility to await the outcome of a possible appeal in the Netherlands, the State Secretary considered that the applicant should leave the Netherlands as soon as possible. The State Secretary further ordered that the applicant’s freedom of movement be restricted by assigning him to an asylum seekers centre and that this order was suspended until the measure of the applicant’s placement in aliens’ detention was lifted otherwise than by a departure from the Netherlands. The applicant’s expulsion to Turkey was scheduled for 11 June 1999. No information has been submitted as to whether he has in fact been deported on this or any subsequent date. Article 26 of the Aliens Act, insofar as relevant, provides: “1. Where the interests of public order, public peace or of national security so require, the following persons can be placed in aliens’ detention: a. alien whose expulsion has been ordered; b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered; c. aliens who are not entitled to residency in the Netherlands under Articles 8-10 <of the Aliens Act>, pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugee. 2. Placement in aliens’ detention will not be ordered when - and will be terminated as soon as - the alien indicates that he wants to leave the Netherlands and has the possibility to do so. 3. A placement in aliens’ detention under the first paragraph under b. or c. shall in no case exceed four weeks.” An alien who does not have any identity papers and 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 lifted. According to Dutch case-law, 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, it is feasible that this point in time is attained at an earlier or later point in time than after six months have passed. It can be later where the alien frustrates the determination of his identity or nationality and it can be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control. Article 15 of the Netherlands Constitution (Grondwet) provides: “1. Other than in the cases laid down by or pursuant to law, no one may be deprived of his liberty. 2. Anyone who has been deprived of his liberty other than by order of a court may request a court to order his release. In such a case he shall be heard by the court within a period to be laid down by law. The court shall order his immediate release if it considers the deprivation of liberty to be unlawful. 3. The trial of a person who has been deprived of his liberty pending trial shall take place within a reasonable time. 4. A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is incompatible with the deprivation of liberty.” Article 34a of the Aliens Act provides as follows: “1. A measure taken under this Act to the effect of a limitation of the freedom of movement or deprivation of liberty shall, for the purposes of Article 8:1 § 1 of the Administrative Law Act, be considered as being on a par with a decision. 2. The court shall examine a first appeal against a decision to the effect of deprivation of liberty within two weeks, either during the preliminary examination under Article 8:44 § 1 of the Administrative Law Act or during a court hearing. 3. If the appeal is directed against a decision as referred to in the second paragraph, the court shall determine the time of the trial proceedings without delay and in any event not later than two weeks after the day of transmission of the appeal. In deviation of Article 8:42 § 2 of the Administrative Law Act, the delay referred to in that Article cannot be prolonged. 4. The Regional Court hands down its written decision, unless immediately at the court hearing a decision is handed down orally, within two weeks following the closure of the investigation <at the hearing>. As a deviation of Article 8:66, second paragraph, of the General Administrative Law Act, the delay referred to in that provision cannot be extended. 5. Where the court finds that the applicant or execution of the measure is contrary to the law or after weighing the interests involved cannot in all reasonability be regarded as justified, it declares the appeal <filed> under this provision founded and orders that the measure be lifted or a change in the manner of its execution.” 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 filing an appeal against a decision of placement in aliens’ detention and in principle a person placed in aliens’ detention can 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. Pursuant to Article 86 of the Aliens Decree (Vreemdelingenbesluit), the Minister of Justice must send a notification to the competent court when an alien has spent four weeks in aliens’ detention where the person concerned has not himself filed an appeal against this decision. This notification is considered on a par with a first appeal within the meaning of Article 34a § 2 of the Aliens Act.