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THIRD
SECTION
CASE OF EMIN v. THE NETHERLANDS
(Application
no. 28260/07)
JUDGMENT
STRASBOURG
29 May
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Emin v. the
Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28260/07) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Bulgarian national, Mr
Galib Myumyum Emin (“the applicant”), on 4 July 2007.
- The
applicant was represented by Mr V. Senczuk, a lawyer practising in
Utrecht. The Netherlands Government (“the Government”)
were represented by their Agents, Mr R.A.A. Böcker and Ms L.
Egmond, of the Ministry of Foreign Affairs.
- The
Government of the Republic of Bulgaria declined to make use of their
right under Article 36 § 1 to take part in the proceedings.
- The
applicant alleged that, although the competent domestic tribunal had
ruled that he had undergone illegal detention, he had not had an
“enforceable right to compensation” within the meaning of
Article 5 § 5 of the Convention.
- On
15 June 2009 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
II. RELEVANT DOMESTIC LAW
- 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. ...”
- 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).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- The
applicant complained that he had been denied an “enforceable
right to compensation” following a period of detention
acknowledged by the competent domestic tribunal to have been
unlawful. He relied on Article 5 § 5 of the
Convention, which reads as follows:
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
- The
Government disputed this.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant enjoyed an enforceable right
to compensation guaranteed by section 106 of the 2000 Aliens Act. In
addition, the applicant had the option of bringing a civil action in
tort under Article 6:162 of the Civil Code. However, the domestic
courts had a certain discretion in the matter of the amount to be
awarded.
- In
fact, so far from actually denying the applicant a right to
compensation, the Regional Court had found that there was sufficient
reason to reduce the compensation award to nil. Justification for
this decision was constituted by the applicant’s own conduct in
failing to report to the police as he had been ordered to, remaining
in the Netherlands illegally and committing serious crimes. Illegal
though his detention had been, the applicant had therefore brought it
upon himself.
- The
applicant questioned the usefulness of civil proceedings in a case
such as the present, given that the Administrative Jurisdiction
Division of the Council of State had declined jurisdiction even
though it was the proper appellate court in cases of this nature. He
further argued that the circumstances mentioned by the Government
could neither justify his detention nor diminish the respondent’s
liability for the consequences of its unlawfulness.
- The
Court has stated the applicable principles as follows (see, as a
recent authority, Stanev v. Bulgaria [GC], no. 36760/06,
§ 182, 17 January 2012, with further references):
(a) Article 5 § 5 is complied with where it is
possible to apply for compensation in respect of a deprivation of
liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4.
(b) The
right to compensation set forth in paragraph 5 therefore presupposes
that a violation of one of the other paragraphs has been established,
either by a domestic authority or by the Convention institutions.
(c) In this connection, the effective enjoyment of the
right to compensation guaranteed by Article 5 § 5 must be
ensured with a sufficient degree of certainty.
- In
the present case it is beyond doubt that domestic law (section 106 of
the 2000 Aliens Act; see paragraph 14 above) granted a right to
monetary compensation for unlawful detention to persons in the
applicant’s position, as well as a procedure before an
administrative tribunal to claim it. The Court is therefore
unconvinced that proceedings in tort under Article 6:162 of the Civil
Code (see paragraph 15 above), relied on by the Government, would
have been of any greater avail to the applicant.
- The
Court is faced with the fact that the domestic administrative
tribunal, while recognising the unlawfulness of the applicant’s
detention and the existence in principle of a right to compensation,
declined to make any award.
- The
principles set out in § 22 above admit of no other conclusion
than that Article 5 § 5 of the Convention creates a direct right
to compensation once the national courts or the Convention
institutions have found that an applicant has been deprived of his or
her liberty contrary to Article 5 §§ 1-4 of the Convention
(see Storck v. Germany, no. 61603/00, § 122, ECHR
2005 V). This has led the Court to find violations of
Article 5 § 5 when domestic courts, while recognising
the unlawfulness of applicants’ detention, nonetheless denied
the applicant compensation on grounds that facts justifying the
deprivation of liberty, albeit unrelated to the actual detention
order, could be found (see Storck, §§ 121-22;
Houtman and Meeus v. Belgium, no. 22945/07, §§
45-46, 17 March 2009; Shulgin v. Ukraine, no.
29912/05, §§ 64-65, 8 December 2011).
- The
present case is another such. There has accordingly been a violation
of Article 5 § 5 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- Rule
60 § 2 of the Rules of Court provides that the applicant must
submit itemised particulars of all claims for just satisfaction,
together with any relevant supporting documents, within the
time-limit fixed for the submission of the applicant’s
observations on the merits unless the President of the Chamber
directs otherwise.
- The
applicant on his application form stated his intention to lodge a
claim for just satisfaction, including for non-pecuniary damage and
costs and expenses. However, he failed to submit any such claim
within the time-limit fixed for the submission of his observations on
the merits, merely stating in his observations that the Court “should
not reject his request for just compensation”.
- The
Court cannot but note the absence of a valid claim for just
satisfaction. There is no call for the Court to consider this matter
of its own motion (see, as recent authorities, Brezovec v.
Croatia, no. 13488/07, § 80, 29 March
2011 and G.R. v. the Netherlands, no. 22251/07,
§ 61, 10 January 2012).
31. The
Court instead refers to the possibilities open to the applicant to
obtain compensation under domestic law (see paragraphs 14 and 15
above) and the duty of the respondent Party to abide by the judgment
of the Court once it is final (Article 46 § 1 of the Convention;
see also, as a recent authority, Stanev v. Bulgaria [GC],
no. 36760/06, § 254, 17 January 2012; and
against the specific background of Netherlands domestic law, Salah
v. the Netherlands, no. 8196/02, §§ 71 and 80, ECHR
2006 IX (extracts)).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 5 of the Convention.
Done in English, and notified in writing on 29 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
