ITEMID: 001-61560
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF AYDER AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objections rejected (estoppel, non-exhaustion of domestic remedies);Violation of Art. 3 with regard to inhuman treatment;Not necessary to examine Art. 3 with regard to inhuman punishment;Violation of Art. 8 and P1-1;Violation of Art. 13;Not necessary to examine Art. 18;Not necessary to examine existence of a practice adopted by the authorities;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 10. The applicants are Turkish citizens of Kurdish origin born in 1940, 1934, 1964, 1966 and 1963 respectively. At the time of the events giving rise to their application, the applicants and their families were living in the town of Lice in Diyarbakır province (south-east Turkey). The application concerns the applicants' allegation that the security forces deliberately destroyed the town of Lice, including their houses and other possessions, as an act of retaliation for the inhabitants' alleged sympathy for the PKK.
11. The facts of the case, particularly concerning events on or about 22 and 23 October 1993, are disputed by the parties.
12. The facts as presented by the applicants are set out in Section B below (paragraphs 16-23). The Government's submissions concerning the facts are summarised in Section C below (paragraphs 24-25).
13. The Commission, in order to establish the facts disputed by the parties, conducted an investigation with the assistance of the parties, pursuant to former Article 28 § 1 (a) of the Convention. Three delegates of the Commission heard the applicants in Ankara from 16 to 20 June 1997 as well as the following 15 witnesses: Leyla Ayder, daughter of the applicant Ahmet Ayder; Huri Biçer, sister of the applicant Şevket Biçer; Türkan, Tahir and Bedriye Ekmekçi, respectively the step-mother, father-in-law and mother-in-law of the applicant Zeydin Ekmekçi; Mustafa Öztan, chief constable of the Lice police; Mehmet Dabak and Özcan Küçüköz, public prosecutors; Ebedi Delidere, deputy mayor of Lice; Gürcan Acar, judge at the Lice Magistrates' Court; İbrahim Şahin, Governor of Diyarbakır province; Hasan Çakır, commander of Lice central gendarme station; Şahap Yaralı, commander of Lice district gendarmerie; Mustafa Küçük, commander of Lice gendarme commando unit; and Yunus Nebioğlu, gendarme investigator appointed by the Office of the Diyarbakır Provincial Governor.
A further three witnesses, who had been involved in the damage assessments carried out in Lice, had been summoned but did not appear before the Commission's Delegates.
14. The Commission's evaluation of the evidence and its findings of fact are set out in its report of 21 October 1999 and are summarised in Section D below (paragraphs 26-61). The applicants accept the Commission's findings of fact.
15. Section E (paragraphs 62-63) contains excerpts of the summary of the evidence given to the Commission's Delegates by Gürcan Acar and İbrahim Şahin. Section F (paragraphs 64-66) sets out the documents submitted by the parties to the Commission and the Court relating to the assessment of damage.
16. Lice was a small town with a population of, very approximately, 5,000 people. Following an earthquake in 1975 many of the houses had been rebuilt in materials which, if set alight, burned easily. Many of the citizens had built stables close to their houses out of mud; these offered greater protection from fire. The official buildings were more substantial. Lice was built on a hillside, the northernmost part of the town being significantly higher than the southern side.
17. There had previously been considerable PKK activity both within and in the vicinity of Lice. Attacks within Lice were directed against State buildings and occurred at night. In the surrounding area, attacks were not confined to the hours of darkness. A short time before the events at issue there had been an operation outside Lice which resulted in the bodies of 15 dead terrorists being brought to Lice for the necessary administrative formalities to be carried out.
18. On 22 October 1993 a large scale, pre-planned operation was carried out in Lice by security forces, notably gendarmes, who opened fire indiscriminately. Before firing commenced, artillery had been placed across the Diyarbakır-Lice road, people in coffee shops had been instructed by gendarmes to go home and children whose parents were in the security forces had been collected from school. Soon after the firing started, helicopters arrived. Some of these were combat helicopters, rather than troop carriers, and machine guns operating out of them were used to fire into the town. Shots were also fired from, notably, the police headquarters, the gendarme commando unit compound, the gendarme station and the regional boarding school where military units were stationed. There was no PKK presence in the town and there was no incoming fire, which explains why these security buildings sustained little or no damage.
19. Any clashes between the PKK and the security forces that took place on 22 October 1993 occurred to the south and south-east of Lice. In the morning, a police vehicle had come under attack on the Lice-Kulp road as it made its way to a petrol station. Later that day, the Lice commando unit which had left town early in the morning to conduct an operation elsewhere was attacked as it attempted to re-enter Lice near the creek which runs from north to south to the east of Lice.
20. The residents of the north-westerly neighbourhood of Kalı, where the houses of all applicants except Yusuf Lalealp's were situated, heard the sounds of bullets impacting on the walls of their homes and stables. They saw members of the security forces driving round in armoured vehicles, firing randomly, and they also saw them on foot – the security forces were not being fired at. They saw and heard helicopters and heard explosions close by, just after the helicopters had passed overhead.
21. Yusuf Lalealp's house in the Şaar neighbourhood in the south-east of Lice was deliberately set alight by security forces on 22 October 1993. The houses of the other applicants were deliberately burned by security forces the following morning, after the shooting had stopped. At about 8 a.m. people were ordered out of their houses by security forces without being given the opportunity to gather their possessions. The first group, consisting of the households of the applicants Ahmet Ayder and Nadir Doman and their neighbours, was gathered in an open area opposite their homes. The security forces broke down doors and/or windows and set fire to the houses with the use of a weapon in the shape of a long tube. The houses situated lower down in the neighbourhood were already on fire by the time the households belonging to the family of the applicant Zeydin Ekmekçi were ordered out of their homes and taken to join the others. The family of the applicant Şevket Biçer were made to leave their home later and by that time the group gathered in the open area had already left for the square near the police headquarters.
22. A large number of people were made to wait in that square for three or four hours for the arrival of the Provincial Governor. The Governor, speaking in Turkish, told the people that the PKK was responsible for the destruction. A middle-aged man and a young woman protested that the soldiers had set fire to the houses; the man was taken away and beaten up, the woman was arrested. Following the Governor's speech a curfew was imposed. Upon returning to their houses the applicants found nothing but a pile of ashes. After the curfew was lifted they left Lice.
23. The applicants complained to the public prosecutor. He did not formally record their complaints but he did make arrangements for damage assessment reports to be drawn up. The applicants received no compensation. No investigation was launched into the actions of the security forces until the notification of the present application to the Government by the Commission, despite the applicants' complaints and allegations of a similar nature being widely reported in the media.
24. On 22 October 1993, at 8 a.m., the PKK launched an attack on Lice which continued until the evening. The security forces had to respond. Despite the precautions taken by the security forces, two of their members were killed and one was injured. Among the civilian population 13 people died and 74 were injured. In the course of the PKK attack and the defence by the security forces certain houses and shops were damaged.
25. The State acted immediately in support of the inhabitants of Lice. Tents were distributed. Buildings and shops that had been damaged were repaired after the damage had been assessed. Money was paid to shop owners whose merchandise had been damaged. Houses were repaired; however, no money was paid to house owners.
26. In the town of Lice a large part of the population lived in prefabricated housing, erected after an earthquake. These dwellings were made of materials which, if set alight, burned easily.
27. In late 1993 there was a sizeable security force presence based in Lice. There was a police force and a central gendarmerie. The district gendarmerie headquarters was also based in Lice, sharing a building with the central gendarmerie. There was also a commando unit, attached to the gendarmerie and stationed in its own compound. According to the commander of that unit, Hasan Çakır, that compound also housed a mechanised infantry company. In addition, there appeared to have been an infantry battalion billeted at or near the regional boarding school at the relevant time.
28. The evidence obtained concerning the frequency of attacks carried out on Lice by the PKK was contradictory. Most of the Government witnesses stated before the Delegates that official buildings were attacked by terrorists on a regular basis and they named a number of buildings which had been destroyed by terrorists. A number of the applicants and their witnesses, however, contended that no clashes had taken place in or around Lice, or that such clashes had been confined to the surrounding areas and the mountains. In their final observations to the Commission, the applicants, referring to newspaper cuttings, submitted that the PKK had avoided attacking Lice for two years in order to spare the civil population. Although this tallied with the testimony of Türkan Ekmekçi, who said that there had been clashes in the past but that they had stopped, Ebedi Delidere and Leyla Ayder told the Delegates that there had been clashes, tension and violence in Lice prior to 22 October 1993, Delidere adding that no one in Lice would go out after dark.
29. From other cases that the Commission had dealt with concerning events in south-east Turkey, it had become clear that PKK activity was rife in 1993. The evidence with which it was presented in the instant case did not persuade the Commission that this level of PKK activity would have been significantly different in Lice. The Commission further found credible the evidence – offered by both the applicants' and the Government's witnesses – that PKK attacks mainly took place at night. The Commission also found it established that about a fortnight prior to the events at issue there had been an incident outside Lice during which between 12 and 15 terrorists were killed and their bodies taken to Lice.
30. The Commission was prepared to accept, however, that those applicants and witnesses who professed to have no knowledge whatsoever of PKK activities in Lice or its vicinity may well have done so out of fear, and it considered that this did not necessarily affect the credibility of the rest of their testimony. It noted in this respect that police chief constable Öztan and the gendarme officers Yaralı and Nebioğlu indicated that the voicing of accusations against the PKK could well have adverse consequences for the individual concerned.
31. The Commission noted that according to the applicants, the town of Lice was not attacked by the PKK on 22 October 1993 but was deliberately destroyed by security forces in a pre-planned operation. In their view, the most likely motive for this action, given previous incidents in the town, was to terrorise the local population and to 'teach them a lesson' for their alleged sympathy for the PKK.
32. Also according to the applicants, there was no evidence, either in the form of casualties or damage to security buildings, of any PKK presence in the town on 22 October. They nevertheless conceded that the attacks on the police vehicle and subsequently on the returning commando unit which, they submitted, took place outside the town, to the south-east, could plausibly be attributed to terrorists.
33. The Commission noted that the position of the petrol station where the police vehicle was shot at was not indicated on the map provided by the Government (Appendix II to the Commission's report). On the map submitted by the applicants it featured (as “Garage”) just outside Lice (Appendix III to the Commission's report). Neither map containing an indication of scale, it was difficult to assess how far outside the town the petrol station was situated. Nevertheless, it did not appear to be in dispute that the shots fired came from the vineyards rather than the town.
34. The Commission was less inclined to accept, however, that the attack on the returning commando unit also occurred outside the town. It observed that according to the gendarmerie incident report of 22 October, the armoured vehicle which was to collect the commando unit was sent to an area in the vicinity of the Şaar neighbourhood, that Şahap Yaralı's report described this area as situated “in the south of the district and to the south of the commando unit compound” and that in his oral testimony Mr Yaralı stated that he had instructed the commando unit to enter Lice through the creek bed in the Şaar neighbourhood to the south of the commando unit compound. Again, in the absence of an indication of scale on the maps it was difficult to place this event with accuracy, but it would appear that the creek mentioned ran quite close to the inhabited area of the Şaar neighbourhood. More importantly, Mr Yaralı added that shots had been fired from houses facing the creek. The Commission found that the evidence before it thus pointed to a presence of PKK members or militiamen [Nota: Militiamen: term used to describe members of the civilian population who provide the PKK with food, shelter and/or information.] in at least some part of the town.
35. The applicants also argued that the availability of helicopters very soon after the shooting started served as a further indication of the planned nature of the operation. The Commission noted that a considerable number of witnesses, including members of the security forces, testified to the presence of helicopters. Both in his report and in his account to the Delegates, Şahap Yaralı related how helicopters had been used to transport injured persons, including General Aydın, to hospital in Diyarbakır and how armed Cobra helicopters had been deployed. It was only police chief constable Mustafa Öztan according to whom just two helicopters had briefly flown over Lice around midday: one a troop carrier and one with fire-power which had been sent in order to enable the first helicopter to land but which had returned to Diyarbakır upon learning that that first helicopter had been forced to put down at Hani. The Delegates found Mr Öztan an evasive and rather reluctant witness who was unwilling to acknowledge pieces of information unless these were directly put to him from the various incident reports. Although his ignorance of the actions of the various gendarmerie units appeared genuine and he might therefore not have had direct knowledge of the request for helicopters emanating from the gendarmerie, the Commission considered it scarcely credible that he would not have become aware of the presence of these helicopters as events unfolded.
36. As to the time of arrival of the various helicopters, Şevket Biçer told the Delegates that he had seen six helicopters arrive from the direction of Diyarbakır 10 to 15 minutes after the shooting had commenced. Huri Biçer stated that helicopters had been flying around throughout the day. The Commission observed that it appeared from Şahap Yaralı's account that one helicopter, with General Aydın on board, had landed at the commando unit compound early in the morning and also that the commando unit's single helicopter had been sent to Kulp early on in the day. Although there had, therefore, been helicopters flying over Lice at an early stage, the helicopters used to transport the wounded and the armed Cobra helicopters did not arrive until later. The Government denied that any orders had been given to the helicopter forces prior to the events. However, they failed to comply with the Commission's request to submit the operational orders for these forces. The Commission found this regrettable, given that the orders would presumably have been able to clarify at what time the helicopters had taken off.
37. Although Mustafa Öztan was adamant that no shots or bombs had been fired from helicopters, the Commission found it established that armed helicopters were deployed and that shots were fired from them. However, it remained in dispute whether this shooting was at all directed at populated areas or, as Mr Yaralı maintained, confined to the areas to the north of Lice. The Commission found some strength in the argument that indiscriminate gunfire from helicopters over the town would have endangered the security forces on the ground, especially if, as the applicants alleged, members of these forces were moving around on foot.
38. In spite of the above, the Commission considered that no clear picture of events emerged from the account, given both in writing and orally, by members of the security forces. In this context it noted in the first place the diverging recollections of the police on the one hand and the gendarmerie on the other. The differing accounts relating to the presence and number of helicopters had already been addressed. In addition, whereas police chief constable Öztan estimated that some 50 terrorists had been ensconced in the mosque, gendarme officer Yaralı put this number at between five and ten and reckoned that in the town as a whole a maximum of only 30 terrorists had been present. The Commission was struck by the apparent lack of communication and coordination between the police and gendarmerie which the oral testimony of Mr Öztan in particular brought to the fore: even after the events, this official, who was in charge of the local police force, appeared to be in the dark about many aspects of what had transpired on 22 October 1993.
39. The successful escape of all terrorists allegedly present in the town was also rather surprising, as this was said to have occurred at a time when the security forces would by far have outnumbered the terrorists. Even if the Commission accepted that the terrorists' escape route, northwards through the creek to the west of the Kalı neighbourhood, was impossible to secure, it was not clear how they would have reached that part of the town. This question was even more pertinent in respect of the terrorists allegedly hiding in the mosque and who only had two gates available to them to make their way out of an otherwise walled-in area.
40. The Commission further observed that no satisfactory explanation had been provided for the limited amount of damage sustained by buildings belonging to the security forces, despite the fact that these were said to be the terrorists' main targets. It noted that the police headquarters was not even included in the report of determination of damaged buildings. Given that these buildings were allegedly not only subjected to gunfire but also to rocket attacks, the Commission was not convinced that the mere fact that these buildings were made out of more solid materials than most of the houses could account for this.
41. Although the Commission was thus of the opinion that a disturbing amount of relevant questions remained unanswered, it considered this an insufficient basis for a conclusive finding that no clash whatsoever took place on 22 October 1993, particularly given that it had similarly not been able to rule out a terrorist presence in some part of the town.
42. Yusuf Lalealp submitted that on 22 October 1993 his house and his barn situated in the Şaar neighbourhood were deliberately set alight by soldiers.
43. It was not in dispute that his house was damaged and that an assessment of the damage was carried out. Mr Lalealp told the Delegates that he had not obtained a copy of the relevant documents relating to the assessment, but the Government provided the file number under which his request for an assessment had been registered. Moreover, Mr Lalealp's property was listed in the report on determination of damaged buildings as having sustained medium damage. While the foregoing allowed the Commission to find it established that Mr Lalealp's property was damaged, the parties did not agree on whether the security forces or the PKK caused the damage, and the Commission therefore had to assess the evidence relating to this issue.
44. The Commission noted that it had serious doubts about the accuracy of the record of the search of a house dated 23 October 1993 according to which a number of empty Kalashnikov cartridges were found in Mr Lalealp's house. In this respect, it noted in the first place that Mr Lalealp told the Delegates that it would have been impossible to find anything amongst the burned remains of his property. More importantly, it appeared that Mr Lalealp was at no stage questioned by the authorities about these cartridges: neither in the days following 22 October 1993 – despite the facts that a considerable number of people had been arrested, that Mr Lalealp had been staying near his home and that he had in fact remained in Lice longer than many other people –, nor on the occasion when he was asked to make a statement to a public prosecutor nearly one year after the event. Indeed, the assertions that cartridges were found in his house struck the Commission as implausible or at least very doubtful.
45. It was true that there were some discrepancies between Mr Lalealp's statement to the Diyarbakır branch of the Human Rights Association (“HRA”) and his testimony before the Delegates, notably with regard to the question whether he attended the speech given by the Provincial Governor on 23 October 1999. According to the statement to the HRA this had been the case, but before the Delegates Mr Lalealp said that he was not aware of any such speech having been made and he had not attended it.
46. The wording of the part of Mr Lalealp's statement to the HRA that related to the Governor's speech was very similar to the wording used in the statements of Ahmet Ayder and Nadir Doman and it seemed likely that parts of one statement were copied and used in respect of other applicants. The Commission, recalling that it had previously had occasion to remark critically on the accuracy of statements taken by the Diyarbakır branch of the HRA, stressed that it could not be expected to guess at possible explanations for inaccuracies encountered in such statements.
47. The Delegates' general assessment of Mr Lalealp's oral evidence was that it was somewhat confused but, nevertheless, frank and convincing. In their observation of Mr Lalealp's demeanour the Delegates obtained the impression that he was sincere in his testimony and that he was a credible witness. The Delegates were of the opinion that any discrepancies between Mr Lalealp's oral evidence and his statement to the HRA were due more to a lack of attention to particular detail than indicative of any untruthfulness in his account. The Commission was prepared to accept that this might explain why Mr Lalealp told the Delegates that his daughter Süryan had been in his house on 22 October 1993 whereas according to his statement to the HRA Süryan was married and living in Diyarbakır. It appeared in any event from his oral evidence that after the lifting of the curfew Mr Lalealp's family had left Lice and had moved in with his daughter in Diyarbakır so that, regardless of whether Süryan was in Lice or not on 22 October 1993, it did not appear in dispute that her home was in Diyarbakır.
48. While the Commission found that it could not be excluded that on 22 October 1993 a clash took place between the PKK and the security forces and that there could well have been a presence of either PKK or militiamen in the Şaar neighbourhood where Mr Lalealp's house was situated, it did not consider the possibility of such a clash having occurred to be sufficient to cast doubt on the veracity of Mr Lalealp's affirmations regarding the origin of the damage to his property. Moreover, his account was on this point entirely consistent with the allegations made by the other applicants in regard to the destruction of their property.
49. Making a global assessment, the Commission found it established that Mr Lalealp's property and possessions were deliberately burned by security forces on 22 October 1993. As a result of this destruction Mr Lalealp's family moved to Diyarbakır, followed some time later by Mr Lalealp himself.
50. The Commission noted that it was not in dispute that on the morning of 23 October the shooting had come to an end. It was, moreover, not in dispute that the houses of the applicants Ahmet Ayder, Nadir Doman, Şevket Biçer and Zeydin Ekmekçi in the Kalı neighbourhood were destroyed – this was confirmed by the report on determination of damaged buildings.
51. According to the eye-witness accounts of events on 23 October given by the applicants Ahmet Ayder and Nadir Doman and the witnesses Türkan, Tahir and Bedriye Ekmekçi, Huri Biçer and Leyla Ayder, soldiers came to the Kalı neighbourhood that morning, ordered the people out of their homes and proceeded to set the houses alight. Most of these witnesses also described how the houses were set alight either by a pipe-shaped instrument or by something being thrown into the houses, Huri Biçer mentioning both methods. Ahmet Ayder saw his own house being set on fire by soldiers and Nadir Doman and Leyla Ayder had witnessed this as well. Moreover, Huri Biçer and Türkan, Tahir and Bedriye Ekmekçi saw Ahmet Ayder's house on fire. These witnesses, except for Bedriye Ekmekçi, also saw Nadir Doman's house burning. Türkan and Tahir Ekmekçi saw Şevket Biçer's house on fire. Moreover, Türkan Ekmekçi saw soldiers surrounding the house of Zeydin Ekmekçi the moment this caught fire. Tahir and Bedriye Ekmekçi saw that Zeydin Ekmekçi's house was on fire.
52. Several witnesses told the Delegates that the soldiers who burned the houses had operated in groups. The Commission observed in this respect that teams made up of members of various commando units were active inside the town on the morning of 23 October. According to the commando unit commander Mustafa Küçük these teams carried out searches.
53. Most of the applicants and witnesses concerned stated that before they were made to go to the square in front of the police headquarters, where they were to be addressed by the Provincial Governor, they had been gathered in an area near the school except for the Biçer family who were the last to leave the neighbourhood. Upon their return to the Kalı neighbourhood they found their houses burned down.
54. The Delegates found these applicants and witnesses convincing, even if the evidence of the more elderly ones was at times somewhat confused. The Commission considered that their accounts were detailed and on the whole consistent.
55. The Government's witnesses maintained, however, that no houses were set alight on 23 October but that houses had burned down the previous day as a result of fighting between the PKK and security forces. Yet those inhabitants of the Kalı neighbourhood who appeared before the Delegates and who had been in Lice on 22 and 23 October were adamant that their houses had still been intact at daybreak of that last day. In this respect the Commission found significant the assumption expressed by the police chief constable Mustafa Öztan that the people of Lice would have slept in their own homes in the night of 22 October or perhaps, because they were scared, in the house of a neighbour or of relatives. He appeared to discount the fact that if more than 400 houses had been destroyed in the course of that day it would have been impossible for people to stay in their own homes or those of most of their neighbours and relatives. This also led the Commission to make the observation that in all likelihood there would have been many more casualties and injured if all of the more than 400 houses that ended up damaged or destroyed had caught fire on 22 October since this implied that a very large number of people would have been out in the open, looking for shelter, perhaps attempting to put out the fires, amidst the heavy gunfire of that day. The testimonies of the afore-mentioned applicants and witnesses before the Delegates, on the contrary, contained convincing accounts of how they had spent the night of 22 October sheltering from gunfire rather than fire. At no stage had this evidence been disputed or any kind of suggestion made as to where these people would have spent the night if they were not where they said they were.
56. The Commission thus accepted that Huri Biçer, for instance, spent the night of 22 October in her brother Şevket's house. Tahir and Bedriye Ekmekçi took shelter in their barn on 22 October and spent the night either in that barn or, as Tahir Ekmekçi stated, in their house – Bedriye not specifically mentioning where she spent the night. Consequently, the destruction of Şevket Biçer's house and Tahir Ekmekçi's house and barn, as documented in the report on determination of damaged buildings must have taken place after 22 October. While this element deprived the account presented by the Government's witnesses of credibility, it rendered that of the four applicants concerned all the more probable.
57. Having regard to the evidence as a whole, the Commission found that the property and possessions in Lice of the applicants Ahmet Ayder, Nadir Doman, Şevket Biçer and Zeydin Ekmekçi were deliberately burned by security forces on 23 October 1993. This led to these applicants and their families leaving the town.
58. The Commission noted that no investigation was lodged into allegations of wrongdoing on the part of the security forces until the present application was referred to the respondent Government, despite the fact that a number of Government witnesses told the Delegates that, not long after the incident, they had become aware of the existence of allegations that houses had been burned deliberately by security forces. Police chief constable Mustafa Öztan had read reports to that effect in the newspapers and judge Gürcan Acar had heard women voice such accusations while he was carrying out damage assessments, but neither man appeared to have seen any cause to inform the public prosecutor. Şahap Yaralı had also been apprised of these allegations through newspaper- and television reports. In the light of this evidence, Mr Acar's statement that no newspapers were available appeared untrue.
59. The applicants Ahmet Ayder and Yusuf Lalealp stated that they went to the public prosecutor's office but that they did not receive any help. However, public prosecutor Mehmet Dabak told the Delegates that he had not received any complaints of security forces deliberately having burned down houses. Even though the Commission could not rule out the possibility, put forward by Mr Dabak, that people had in fact gone to the judge of the Magistrates' Court rather than to him, it found it nevertheless peculiar that Mr Dabak would not have read about allegations of wrongdoing by the security forces in the newspapers whereas Messrs Öztan and Yaralı had. It is clear that various newspapers reported the allegations and the Commission was less than impressed with Mr Dabak's statement that he would have made enquiries into the underlying facts of such reports had he read them.
60. The Commission further observed that the investigation launched after the present application was brought to the attention of the Government, and which ended with a decision of non-prosecution being taken by the Lice District Administrative Council, still did not address the complaints of four of the five applicants, namely that their houses had been burned on 23 rather than 22 October 1993. Finding that he lacked jurisdiction, Lice public prosecutor Mustafa Küçüköz referred the investigation to the District Administrative Council, after having obtained statements from four of the applicants. Yunus Nebioğlu, who was in charge of the subsequent investigation, requested the police to take statements from the applicants but it appeared that he drew up his report on the matter at a time when a statement from only one of the applicants, Zeydin Ekmekçi, had in fact been taken. The Commission noted that although this statement contains a very clear accusation of wrongdoing on the part of the security forces, Mr Nebioğlu did not judge it necessary to hear any security force personnel. From the text of his report and his testimony before the Delegates, it seemed to the Commission that his attitude towards the complaints brought by the applicants was seriously prejudiced and that these complaints did not receive serious consideration.
61. In conclusion, the Commission found that no effective investigation was carried out.
62. The following are excerpts from the summary of the oral evidence as set out in the Commission's report (§§ 278-290), given to the Commission's Delegates by Gürcan Acar, a judge in the Lice Magistrates' Court at the relevant time:
“Some 300 or 400 applications for damage assessment had subsequently been filed. Such an assessment could only be carried out if a person requested it, and the findings of the on-site inspection would serve as the basis for any future law-suit.
...
The owners of the property had received a copy of the damage assessment report. Such a report constituted evidence. A claim for compensation could subsequently be filed with the administrative courts. Not all the people had understood this. Some had thought that they were going to receive material assistance or money directly from him. Although he had not been obliged to do so, he had usually attempted to explain that they had to apply to the administrative courts.
He did not know if any other teams had collected evidence as to the cause of the fires. He did, however, think that a team came from the office of the Provincial Governor to establish the extent of the destruction to property.”
63. The following are excerpts from the summary of the oral evidence as set out in the Commission's report (§§ 317-327), given to the Commission's Delegates by İbrahim Şahin, Governor of Diyarbakır province at the relevant time:
“He had gone to Lice a little after midday on 23 October 1993. He had informed the security forces less than an hour beforehand that he wanted to find out about the problems of the citizens and determine in what way they could be helped. ... He had ... found a group of 200-300 people waiting for him in an open area near the police headquarters. He assumed that they had been told by the security forces that they could ask him for assistance. ...
Using a car microphone he had then made a speech in which he had emphasised the harmfulness of terrorism. He had assured the people that the State would compensate all the damage they had suffered.
All the people had asked for was for their damage to be repaired. He had sent two technical committees to Lice to have the damage suffered by each and every person determined. He had ordered for the shops to be repaired. In order to secure normal living conditions he had given priority to the shops. ...
The damage assessment which he had ordered only concerned buildings and not the contents of those buildings. Within the limits of the budget of the province he had provided the necessary help. He had subsequently sent the assessments to Ankara and had asked the Government for assistance. ...”
64. In the proceedings before the Commission, the applicants submitted a “Report on Determination of Damaged Buildings”, which had been given to the HRA by the Lice public prosecutor. The third section of this report lists 402 owners of 436 private homes and/or stables and the extent of damage sustained by these properties (the preceding sections of the report concern commercial premises and public buildings). According to this section of the report, the houses of Ahmet Ayder (spelled Aydaş), Nadir Doman (spelled Duman) and Şevket Biçer were destroyed, the house and stable of Zeydin Ekmekçi were destroyed, and the house of Yusuf Lalealp sustained medium damage.
65. In the proceedings before the Commission the applicants, apart from Yusuf Lalealp, also submitted experts' reports relating to the inspections carried out at their request by a judge of the Lice Magistrates' Court and an independent expert. These inspections were aimed at establishing that the roof and walls of their houses had burned down and collapsed, that their possessions inside the houses had burned, as well as at the identification of the remains.
66. On 30 August 2000, and again on 5 January 2001, the Government submitted the documents of this damage assessment procedure “in relation to the properties of Yusuf Lalealp”.
67. Since approximately 1985, serious confrontations have occurred in the south-east of Turkey between the security forces and members of the PKK (Workers' Party of Kurdistan). This confrontation has claimed the lives of thousands of civilians and members of the security forces.
68. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey, including Diyarbakır. Under Article 4 (b) and (d) of the Decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the Regional Governor.
69. The second, Decree no. 430 (16 December 1990), reinforced the powers of the Regional Governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim an indemnity from the State for damage suffered by them without justification.”
According to the applicants, this Article grants impunity to the governors and reinforces the powers of the regional governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit.
70. Article 125 §§ 1 and 7 of the Constitution provides as follows:
“All acts or decisions of the authorities are subject to judicial review...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
71. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
72. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.
73. The Criminal Code makes it a criminal offence:
– to make an unlawful search of an individual's home (Articles 193 and 194);
– to commit arson (Articles 369, 370, 371, 372), or in case human life is endangered aggravated arson (Article 382);
– to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); or
– to damage another's property intentionally (Articles 526 et seq.).
74. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution (Article 153). Complaints may be made in writing or orally. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
75. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. In these circumstances proceedings may be initiated by the (non-military) persons concerned before the competent authority under the Code of Criminal Procedure, or before the suspected persons' hierarchical superior (Articles 93 and 95 of Law 353 on the Constitution and the Procedure of Military Courts).
76. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and compensation for non-pecuniary or moral damage awarded under Article 47. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund.
77. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State security prosecutors and courts established throughout Turkey.
78. The public prosecutor is also deprived of jurisdiction with regard to offences allegedly committed by members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the Regional Governor (see paragraph 68 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. The Law of 1914 has been replaced by another law in the meantime. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision declining jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the Governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
VIOLATED_ARTICLES: 13
3
8


ITEMID: 001-70371
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SARBAN v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 5-3 (insufficient reasons for detention);No violation of Art. 5-3 (statutory competence of judges);Violation of Art. 5-4 (length of review);No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1957 and lives in Chişinău. He worked as the secretary of the Chişinău Municipal Council.
7. On 8 October 2004 the Prosecutor General initiated criminal proceedings against the applicant for alleged abuse of power under Article 327 § 2 of the Criminal Code, in relation to a purchase of 40 ambulances by the Chişinău Mayoralty.
8. On 12 November 2004 the applicant was arrested by officer G.G. from the Centre for Fighting Economic Crime and Corruption (CFECC). On 15 November 2004 the Buiucani District Court issued a warrant for his remand in custody for 10 days. The reasons given by the court for issuing the warrant were that:
“The criminal file was opened in accordance with the law in force. [The applicant] is suspected of having committed a serious offence for which the law provides imprisonment for more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; he could obstruct the finding of truth in the criminal investigation or re-offend”.
9. On 18 November 2004 the Chişinău Court of Appeal partly quashed that decision and adopted a new one, ordering the applicant’s house arrest. The court found that:
“The [lower] court did not commit any procedural mistakes, but taking into account that [the applicant] has a permanent place of residence, has no criminal record, is ill and requires treatment in conditions of non-isolation from society and that there is no specific information about the probability of his absconding from the law-enforcement authorities, the [court] considers that in the present case the normal flow of the criminal investigation will be ensured if the accused is subjected to the preventive measure of house arrest. The [court] also notes that the criminal file was opened on 8 October 2004 and that on 13 and 16 November 2004 the applicant was summonsed by the [law-enforcement authorities] as a witness, but on 12 November 2004 he was taken into custody, and no newly discovered circumstances requiring his detention were submitted. Besides, it is necessary to take into account the presumption of innocence, guaranteed by Article 8 of the Code of Criminal Procedure and that the offence with which the applicant is charged is also punishable with a fine.”
10. On 19 November 2004 the applicant was again arrested on suspicion of having committed the offence of exceeding the limits of his powers in exercising a public function, contrary to Article 328 § 1 of the Criminal Code, in relation to the same purchase of ambulances referred to in paragraph 7 above. The reason given for the arrest was that “eye witnesses can testify that this person has committed a crime”.
11. On 22 November 2004 the President of the Buiucani District Court issued a warrant for his detention for 10 days. The reasons given by the court for issuing the warrant were that:
“[the applicant] is suspected of having committed a serious offence, for which the law provides imprisonment for more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; he could obstruct the finding of the truth in the criminal investigation or re-offend”.
12. The applicant submitted arguments against the necessity of applying the preventive measure of detention and focused on his bad state of health. He referred to concrete facts, such as that since his first arrest he had never obstructed in any way the investigation and had appeared before the authorities whenever summonsed. His conduct regarding the investigation had always been irreproachable. He had a family, had property in Moldova and none abroad, and several newspapers were ready to guarantee his freedom in accordance with the provisions of the Code of Criminal Procedure. The applicant was ready to give up his passport as an assurance that he would not leave the country.
13. On 25 November 2004 the Chişinău Court of Appeal upheld the decision of the Buiucani District Court of 22 November 2004. The court gave no specific reasons for its decision other than to confirm the lawfulness of the lower court’s decision.
14. On 26 November 2004 the President of the Buiucani District Court prolonged the applicant’s detention on remand for another 30 days until 29 December 2004. The court reasoned that detention was necessary because:
“[the applicant] is suspected of having committed a serious offence; there is a risk that he may put pressure on witnesses or put himself out of the reach of law enforcement authorities; and there is a continuing need to isolate him from society”.
15. On 2 December 2004 the Chişinău Court of Appeal dismissed the applicant’s appeal without relying on any new arguments.
16. On 14 December 2004 the President of the Buiucani District Court rejected a habeas corpus request made by the applicant, stating that:
“according to the criminal file, [the applicant] is accused of having committed a less serious offence, for which the law provides the punishment of deprivation of liberty for more than two years.”
17. On 20 December 2004 the Chişinău Court of Appeal dismissed the applicant’s appeal against the judgment of 14 December 2004.
18. Also on 20 December 2004 officer G.G., the investigator who had arrested the applicant and who had been in charge of the case since 10 September 2004, made a declaration during a press conference. He essentially stated that the case against the Mr Urecheanu and other accused in the “ambulances case” was fabricated for political reasons in order to remove political opponents. There was nothing in the file, according to G.G., which would warrant the initiation of the criminal proceedings or the arrest of the applicant.
19. On 21 December 2004 the investigation ended and the criminal file was referred to the Centru District Court. According to the domestic law, no prolongation of detention on remand was necessary after that and the applicant remained in custody pending a final judgment favourable to him or a court decision to end his detention.
20. On 13 January 2005, during the first hearing on the merits of the criminal case, the applicant submitted another habeas corpus request and expressed his readiness to present further guarantees against absconding. He based his request, inter alia, on his weak state of health and on the declarations made by the investigator G.G. on 20 December 2004. At the prosecutor’s request, the court postponed the hearing until 20 January 2005 in order to decide on joining the applicant’s case with that of other suspects.
21. On 20 January 2005 the court accepted a prosecutor’s request to join the applicant’s case with three other criminal cases of persons who worked in the Chişinău Mayoralty. In reply to the applicant’s habeas corpus request, the court held that it would be for the court examining the joined cases to decide whether the continuing detention was necessary. He complained about the court’s failure to properly respond to his request.
22. On 27 January 2005 the hearing was postponed.
23. On 2 February 2005 the court rejected, by a final judgment, the applicant’s habeas corpus request, finding that:
“[the applicant was remanded] because he is suspected of having committed a serious offence; he may abscond from the law enforcement authorities; and he may obstruct the finding of truth in the criminal process. The grounds on which the detention on remand was ordered remain valid.”
24. On 16 February 2005 the Centru District Court rejected another habeas corpus request made by the applicant, finding that “the grounds for detaining the applicant on remand still hold”.
25. The applicant has a medical condition called “progressive cervical osteoarthritis (mielopatie) with displacement of vertebrae C5-C6-C7, with pain disorder” and has to wear permanently a device immobilizing his neck to minimize risk of fatal injuries to his spinal cord. He also suffers from gout and from arterial hypertension of second degree with increased risk of cardio-vascular complications, all confirmed by medical certificates.
26. His complaint about the lack of sufficient medical assistance refers to the period of his detention in the CFECC remand centre between 12 November 2004 and 18 January 2005.
27. Between 12 and 29 November 2004 (between 19 and 29 November according to the Government) the applicant held a hunger strike. On 19 November 2004 (the day of his second arrest) he was consulted by Doctor A. E., who noted the applicant’s complaints about pain in his back and diagnosed him with serious arterial hypertension (hipertensiune arterială esenţială), giving him medication to decrease his blood pressure.
28. According to the applicant, neither his family doctor, doctor G., nor any other doctor had been allowed to examine him while in detention until after communication of his application to the Government. He submitted copies of two requests lodged by his family doctor on 22 and 29 November 2004 by which he asked permission to examine the applicant or to have him examined by any other qualified doctor. Neither of the requests was allowed or even acknowledged.
29. According to the Government, the applicant did not personally make any request to see doctor G. at any time during his detention.
30. On 29 November 2004 the applicant fainted during a court hearing and was rushed to a detainee hospital, where he was treated until 20 December 2004.
31. According to the applicant, he was not examined by any neurologist while in the hospital. His personal medical file shows that he complained on numerous occasions of pain in the cervical region of his spine and numbness in his fingers and arms (on 2, 7, 13 and 15 December 2004). Only on 15 December 2004 was he visited by a neurologist who concluded that: “an examination by a neurosurgeon is recommended in order to determine the appropriate treatment”. No such further examination took place.
32. On 20 December 2004 he was released from hospital and taken back to the remand centre. According to his release form, he was “in a satisfactory condition with the recommendation of supervision by a general practitioner and a neurologist, checks of arterial blood pressure and administration of tablets....”
33. On 20 December 2004 a prosecutor allowed a request by the applicant’s wife to have the applicant examined by a neurologist at the remand centre. However, the doctor did not have access to the applicant due to the CFECC administration’s refusal to allow that.
34. According to the applicant there were no medical personnel in the remand centre.
35. According to the Government, there was a doctor, R.V., who was a general practitioner and who had provided regular medical assistance to the applicant throughout his detention. In case of an emergency, detainees could have been transported to a nearby hospital.
36. According to the applicant, due to the lack of medical assistance, he had had to use the opportunity to have his blood pressure measured through the bars of the cage in which he was held during court hearings.
37. The Government did not dispute that, but rather stated that the general practitioner at the remand centre had provided the applicant with medical assistance whenever he requested it.
38. According to the Medical Register of the remand centre, submitted by the Government, during the period with which the complaint is concerned the applicant was examined only on 19 November 2004. The next record regarding the applicant is on 19 January 2005. Doctor R.V.’s name appears for the first time, in all the documents submitted by the Government, on 11 February 2005.
39. The applicant’s wife made numerous unsuccessful attempts (on 16, 17, 20, 22, 26, 27 November 2004, as well as on 20 and 21 December 2004) to obtain permission to check on his state of health and to bring him various items. Both the applicant and his wife requested that an arterial blood monitor should be brought and, that instructions should be sought from doctor G. on how properly to use it. She was eventually allowed to give the items to the applicant.
40. On 19 January 2005 the Centru District Court allowed the applicant’s request to be examined by a doctor. On the same day he was examined by the Head of the Therapy Section of the Pruncul Hospital, who noted in the Medical Register (see paragraph 38 above) that the applicant did not complain about his health.
41. Doctor G., who examined the applicant on 26 January 2005, concluded that his condition had substantially worsened due to the combination of the three diseases (see paragraph 25 above). In the event of lack of medical treatment, the applicant ran serious risks for his life and health. Failure permanently and correctly to monitor and react to changes in his arterial pressure, level of uric acid and other signs could lead to serious effects including myocardium infarct and cerebral-vascular accidents and even sudden death.
42. Professor Z., the Head of the Neurology Chair of the “Nicolae Testimiteanu” hospital, was allowed to see the applicant in prison on 25 January 2005. The applicant complained of pain and numbness in his hands, of headaches and of the lack of constant supervision by a specialized doctor. In his report, professor Z. referred only to the applicant’s cervical osteoarthritis and did not recommend hospitalisation. He recommended treatment with symptomatic medication, limitation of physical movement and the permanent wearing of the neck-fixing device. While he found no major risk to the patient’s life due to osteoarthritis, he admitted that there was a constant risk of worsening of the condition of his nervous system. He considered that in case of aggravation of the applicant’s state of health, he would need neurosurgical treatment in a specialised clinic.
43. Two other doctors, doctor S.G. and doctor M.G., who examined the applicant’s medical files in late January 2005, while referring to the applicant’s cervical osteoarthritis, submitted that this disease could ultimately lead to permanent loss of movement and to negative effects for the cardio-vascular system. Doctor S.G. recommended medication, special gymnastics and consultation by a neurosurgeon in order to determine the necessity of undergoing micro-neurosurgery. He also recommended the wearing of a neck immobilisation device. Doctor M.G. submitted that there was a serious risk for the applicant’s health linked to his osteoarthritis, including tetraparesis. He recommended hospitalisation.
44. A State Medical Commission created after the communication of the case to the Government found that cervical osteoarthritis presented a risk to the applicant’s health and that there was a possibility of an eventual increase in the pain suffered. The patient needed “a regime of adequate medical supervision and treatment on an out-patient basis (at home, at work, in prison)”. In a letter of 9 February 2005 to the Government Agent the Ministry of Health declared that high arterial blood pressure and gout required “an adequate psycho-emotional regime and the administration of medication prescribed by a doctor”.
45. According to the applicant, except for one occasion, he was always brought to the court in handcuffs and placed in a metal cage during the hearings. The Government did not dispute that.
46. According to the applicant the cell in which he was detained in the remand centre was overcrowded since it had 11 m2 for 4 persons and was too hot.
47. According to the Government the applicant had been detained with only one more person in the cell and the temperature and other conditions were within acceptable limits. In support of their submissions the Government sent the Court a copy of a report of 11 February 2005, drafted by a sanitary-epidemiological inspection and pictures and a video showing the applicant’s cell.
48. The room for meetings between lawyers and detainees in the remand centre had a double glass partition with holes which only partly coincided and which were covered with a thick net, to keep them separated. According to the applicant they had to shout in order to hear each other and could not exchange documents for signature.
49. The Government did not dispute the existence of a glass partition and sent the Court a video with its images.
50. On 15 February 2005 the applicant requested the Centru District Court to order the CFECC administration to provide a room for confidential meetings with his lawyer. On 16 February 2005 the court rejected the request on the ground that according to the CFECC administration, there were no recording devices installed in the meeting room and that the glass partition was necessary for the security of detainees and lawyers.
51. The relevant provisions of the Constitution read as follows:
“Article 53 The right of a person whose rights are violated by a public authority
(1) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period, is entitled to obtain the recognition of the right claimed, the annulment of the act and compensation for damage.
(2) The State bears pecuniary liability, according to the law, for harm caused through errors committed in criminal proceedings by the investigating authorities and courts.”
52. The relevant provisions of the Code of Criminal Procedure (‘the CPP’) read as follows:
“Article 29 Courts which deliver criminal justice
(3) Within the courts, at the criminal prosecution phase, investigating judges act as judicial organs with their own powers in the course of the criminal process.
Article 41 Competence of the investigating judge
The investigating judge ensures judicial control during the criminal prosecution by:
1) ordering, replacing, terminating or revoking detention on remand or house arrest,
2) ordering the provisional release of the person detained or arrested, ...
Article 176
“(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence.
(2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in § (1).
(3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria:
1) the character and degree of harm caused by the offence,
2) the character of the ... accused,
3) his/her age and state of health,
4) his/her occupation,
5) his/her family status and existence of any dependants,
6) his/her economic status,
7) the existence of a permanent place of abode,
8) other essential circumstances.
...
Article 190
A person detained on remand under the provisions of Article 185 may request, at any time during the criminal investigation, his provisional release under judicial control or on bail.
Article 195 § 1
A preventive measure applied may be replaced by a harsher one, if the need for it is proved by evidence, or by a lighter one, if by applying it the proper behaviour of ... the accused is ensured, with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed.
Article 308 Examination of requests for detention on remand or house arrest
... (2) A request for the application of a measure of detention on remand or house arrest is to be examined without delay by the investigating judge, in camera, with the participation of the representative of the prosecuting authority, of the defender and of the accused.
...
(4) After examining the request, the investigating judge shall make a reasoned decision, ordering detention on remand or house arrest or rejecting the request. On the basis of the decision, the investigating judge shall issue a warrant of arrest which is given to the representative of the prosecuting authority and to the accused and which is executed immediately.
...
(6) The investigating judge has the right to decide whether a less restrictive preventive measure should be applied. ...
Article 310 Admissibility of a request for provisional release and the court’s decision
(1) The investigating judge shall verify if the request for provisional release corresponds to the provisions of Articles 191 and 192. If the request does not correspond to those requirements, the investigating judge shall adopt a decision to reject the request, without summonsing the parties.
(2) If the request corresponds to the requirements provided for in § 1 and was submitted by the accused, the investigating judge shall decide on the admissibility of the request and set a date for deciding on the request, summonsing the parties.
...
(5) On the established date, the investigating judge shall decide on the request for provisional release with the participation of the prosecutor, the accused, his defender or guardian, as well as the person who made the request. The decision shall be taken after hearing all those present.
(6) If the request is well based and conforms to the requirements of the law, the investigating judge shall adopt a reasoned decision provisionally to release the accused, setting conditions if necessary.”
53. The relevant provisions of the Civil Code read as follows:
“Article 1405. Liability of the State for damage caused by the actions of the criminal investigation organs, prosecution and courts
(1) Damage caused to a natural person through illegal conviction, illegal prosecution, illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city, and illegal subjection to the administrative sanction of arrest or of non-remunerated community work, is to be fully compensated by the State, whether or not officers in the criminal investigation organs, the prosecution or judges were at fault. ...”
54. The relevant provisions of the Law No. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts read as follows:
“Article 1
(1) In accordance with the present law, individuals and legal entities are entitled to compensation for the moral and pecuniary damage caused as a result of:
a) illegal detention, illegal arrest, illegal indictment, illegal conviction;
b) illegal search carried out during the investigation phase or during trial, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the person’s rights;
c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine;
d) carrying out of unlawful investigative measures;
e) illegal seizure of accounting documents, other documents, money or stamps as well as blocking of banking accounts.
(2) The damage caused shall be fully compensated, irrespective of the degree of fault of the criminal investigation organs, prosecution and courts.
Article 4
A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met:
a) pronouncement of an acquittal judgment;
b) dropping of charges or discontinuation of investigation on the ground of rehabilitation;
c) adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation;
d) adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova; ...”
55. The relevant provisions of the Law on Remand (No. 1226-XIII) read as follows:
“Article 32 Measures applied to detainees refusing to take food
... (4) A detainee who refuses to take food is detained, when possible, apart from other detainees and must be monitored by a doctor. Ambulatory and emergency medical assistance to such a person is to be given in the cell where (s)he is detained...”.
56. The relevant provisions of the Law on Judicial Organisation (No. 514-XIII) read as follows:
“Article 27. President of the Court
(1) The President of the Court:
... h) in case of a reasoned absence of the investigating judge, may appoint an experienced judge to exercise the functions of the investigating judge.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 5
8
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-95777
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF OMOJUDI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant, Mr Steven O. Omojudi, is a Nigerian national who was born in 1960. He currently lives in Nigeria.
5.
6. The applicant was born in Nigeria and lived there until 1982. He was educated in Nigeria and for a period he was employed by a Nigerian aviation handling company. On 9 September 1982, when he was twenty-two years old, he was granted two months' leave to enter the United Kingdom as a student. His leave was subsequently extended to 15 January 1986. In 1983 the applicant was joined by his partner, who was also a national of Nigeria. The applicant married his partner in the United Kingdom in 1987. They had three children, who were born on 11 February 1986, 28 October 1991 and 16 September 1992. The children were born in the United Kingdom and all are British citizens. The oldest child has a daughter, who is now two years old.
7. Prior to the expiry of his leave in January 1986, the applicant applied for a further extension. The following day, however, he was caught returning from the Netherlands with a British visitor's passport obtained by deception. Although he was not prosecuted for the offence, the application to extend his leave was refused.
8. On 12 March 1987 the applicant was informed of his liability for deportation. He was served with a deportation order on 31 July 1987. He attempted to appeal against the order and a second deportation order was served on 4 December 1990. The applicant appealed against the second order, but the appeal was subsequently withdrawn.
9. The applicant was convicted of theft and conspiracy to defraud on 7 March 1989. He was sentenced to four years' imprisonment. Other convictions the same day resulted in five terms of twelve months' imprisonment to run concurrently.
10. On 24 October 1995 the applicant claimed asylum by post, but on 12 January 1998 the application was refused for non-compliance.
11. On 28 September 2000 the applicant and his wife applied for leave to remain under an overstayer's regularisation scheme. On 18 April 2005 they both were granted Indefinite Leave to Remain.
12. On 19 November 2006 the applicant was convicted of sexual assault. The conviction stemmed from an incident in which the applicant, in his capacity as a housing officer, touched a woman's breast without her consent. He was sentenced to fifteen months' imprisonment, with half to be spent in custody and half on licence, and he was registered as a sex offender. The offence was considered to be particularly serious as the applicant was in a position of trust at the time it was committed. The sentencing judge described the offence as “a gross sexual intrusion into the private life of a woman by someone in a position of trust”. He reduced the sentence, however, to lessen the impact on the applicant's family and he did not recommend him for deportation.
13. The Secretary of State for the Home Department made a deportation order on 31 March 2007 on the basis that deportation was necessary for the prevention of disorder and crime and for the protection of health and morals. The applicant appealed against that decision but the appeal was dismissed on 25 July 2007. Although the judge accepted that the applicant had established a family life in the United Kingdom, and that deportation would interfere with that family life, he concluded that the measure was proportionate because the applicant remained a potential offender who posed a threat to society. The applicant sought permission to apply for judicial review, which was refused on 15 August 2007 and again on 28 November 2007.
14. The applicant subsequently was served with removal directions set for 23 January 2008. On 18 January 2008 he introduced his case with the Court and on 24 January 2008 the Court ordered that the case be notified urgently to the Government under Rule 40 of the Rules of Court. On the same day the applicant again sought permission to apply for judicial review. Permission was refused and on 25 April 2008 the appeal against this decision was dismissed at an oral hearing. The applicant was served with new removal directions and he was deported to Nigeria on 27 April 2008.
15. From 24 January 2008 until 25 April 2008 both the applicant and his representative requested the applicant's risk-assessment report from the Probation Service, initially on a weekly basis and subsequently at regular intervals. The report, however, was only disclosed on 25 April 2008.
16. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision on the grounds, inter alia, that the decision is incompatible with the Convention.
17. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
18. A person who has been deported may apply to have the deportation order revoked. Paragraphs 390 to 392 of the Immigration Rules HC 395 (as amended) provide that:
“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:
(i) the grounds on which the order was made;
(ii) any representations made in support of revocation;
(iii) the interests of the community, including the maintenance of an effective immigration control;
(iv) the interests of the applicant, including any compassionate circumstances.
391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion
(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or
(ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees.
will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.
392. Revocation of a deportation order does not entitle the person concerned to reenter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.”
VIOLATED_ARTICLES: 8


ITEMID: 001-105201
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: AFIF v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Ms Fatma Afif, claims that she is a Somali national and that she was born in 1978. She currently lives in the Netherlands. She was represented before the Court by Ms M.L. van Riel, a lawyer practising in Alkmaar. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 26 April 2005, the applicant filed a request for asylum in the Netherlands. On 27 April 2005, the immigration authorities conducted a first interview (eerste gehoor) with her for the purposes of establishing her identity, nationality and travel itinerary. The applicant was assisted by a Swahili interpreter. She stated that she was a citizen of Somalia of Bajuni origin and that she hailed from Kismayo in southern Somalia, where she had always lived. She declared that she could speak a little Somali, namely Kimaymay, the Watuni clan language. She had married on 8 August 1997. Her husband had left for an unknown destination in April 2004. He had not told her where he was going, just that he would come back. But she had not heard from him since. On 6 March 2005, she had left Kismayo for Mogadishu from where she travelled on to Addis Ababa the next day. From there she had travelled by air, with one stop-over in an unknown country, to the Netherlands where she had arrived on 11 March 2005. She had never had a passport and she had never held any travel documents. Her “travel agent” had kept the identity and travel documents throughout her journey and had abandoned her after her arrival in the Netherlands. Her mother, two siblings and her two children had remained in Kismayo.
4. On 29 April, 2 May and 31 May 2005, further interviews (nadere gehoren) were held with the applicant for purpose of clarifying her reasons for seeking asylum. Like before, the applicant was assisted by a Swahili interpreter. She stated that her husband was a lorry driver and that, since he had left on 6 April 2004, he had not returned home. A week after his departure, she and her two children (a son born in 1998 and a daughter born in 1999) had moved to her mother’s who was also living in Kismayo. She had been bothered by men belonging to the Marehan clan who twice came to her house to enquire about her husband’s whereabouts. After she had told them that she did not know where he was, they had beaten and raped her. She had then decided to flee Somalia. She had entrusted her two children to her mother, and had left. Another reason for her flight was that, according to her uncle’s wife, she had not been properly circumcised. Since the birth of her second child in 1999, her husband’s family were putting her under pressure to undergo a further circumcision and to have her daughter circumcised, too.
5. By letter of 21 July 2005, the Deputy Minister of Justice (staatssecretaris van Justitie) informed the applicant that a language analysis for the determination of the applicant’s origin was considered essential for the assessment of her asylum request and that, for this reason, the statutory defined six months’ delay for determining the asylum request was prolonged by the maximum allowed period of six months, i.e. until 25 April 2006. The applicant was further informed of the possibility of asking for a counter analysis. A recording was made of an interview with the applicant for the purposes of a language analysis.
6. On 19 August 2005, a report was drawn up on the language analysis test carried out by the Office for Country Information and Language Analysis (Bureau Land en Taal), a specialised unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; “IND”). According to the language analyst – a Swahili native speaker from Tanzania – who had conducted this test, the applicant spoke Swahili as commonly spoken in the coastal region of Kenya/Tanzania. Swahili was unequivocally her mother tongue and she had no active command of Somali, the dominant language spoken in her alleged area of origin in respect of which she was also unable to give concrete, detailed information. The language analyst unequivocally identified the applicant as not originating from a linguistic community in Somalia but as a member of the linguistic and cultural community in Tanzania (“eenduidig te herleiden tot de spraak- en cultuurgemeenschap binnen Tanzania”).
7. On 24 February 2006 the Deputy Minister of Justice notified the applicant of her intention (voornemen) to reject the asylum request. The Deputy Minister considered that, as the applicant had not demonstrated either by documents or through her statements her stated nationality and identity and as it had appeared unequivocally from a language analysis that she did not originate from Somalia, no credibility could be attached to her asylum account. The applicant was invited to submit within four weeks written comments (zienswijze) on the intention. She was further requested to inform the Deputy Minister whether she intended to commission a counter analysis. If so, the delay for submitting written comments would be extended by two weeks. This letter was accompanied by the report of 19 August 2005 and a compact disc with the recordings used for the language analysis.
8. In her written comments of 5 April 2006, the applicant argued, inter alia, that the language analysis carried out was inadequate and stated that a counter analysis would be submitted as soon as possible and that, according to standing case-law which she did not specify further, this counter analysis should be taken into account in the determination of her asylum request.
9. On 14 April 2006, the Office for Country Information and Language Analysis gave a reaction to the applicant’s comments on the language analysis test and its conclusion.
10. On 18 April 2006, the Deputy Minister rejected the applicant’s asylum request for the same reasons as already given in the intention of 24 February 2006. The Deputy Minister rejected the request for a further stay of the determination of the applicant’s asylum request and, noting that the applicant had not specified the case-law on which basis the Deputy Minister would be obliged to await the submission of a counter analysis, referred to the statutory maximum delay for decision.
11. The applicant’s appeal against this decision was rejected by the Regional Court (rechtbank) of The Hague, sitting in Assen, on 12 January 2007. It noted that the findings set out in the language analysis report contrasted with the applicant’s statements about her alleged area of origin and, bearing in mind the absence of any concrete indications to doubt the accuracy of the report of 19 August 2005 and that no counter analysis had been submitted by the applicant, considered that there was no doubt as to the correctness of the language analysis carried out.
12. The applicant’s subsequent appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) was dismissed on 2 March 2007. It upheld the impugned ruling of 12 January 2007 on summary grounds for not raising any points of law. No further appeal lay against this ruling.
13. On 24 July 2007, the applicant filed a second asylum request which, pursuant to article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht), must be based on newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) warranting a revision of the decision taken. When interviewed on 24 July 2007 on her reasons for filing a repeat asylum request, the applicant merely stated that she had done so because her first request had been rejected and that she had nothing further to add to her account.
14. On 30 July 2007, the applicant’s lawyer submitted a report drawn up on 5 June 2007 on a counter language analysis test carried out by Mr M.T., a professor of African linguistics and Somali language at the University of Naples and by Ms F.H.T., a native Somali speaker. They concluded:
“The applicant is a young Somali woman from the South. She does not speak about the Bajunis; her claim to have been raised in a Bajuni-speaking family cannot be confirmed nor disconfirmed, nor her claim to speak Swahili, natively or not.”
15. This second asylum request – following a notification of intended rejection and the applicant’s written comments thereon – was rejected by the Deputy Minister of Justice on 30 July 2007. As to the report of 5 June 2007, the Deputy Minister noted that the applicant had failed to mention the counter analysis in her interview of 24 July 2007 and had submitted this report for the first time only on 30 July 2007, whereas she could and should have submitted this document at an earlier stage. Accordingly, the report of 5 June 2007 was not accepted as a novum for the purpose of article 4:6 of the General Administrative Law Act. Further submissions made by the applicant were also not accepted as nova.
16. On 15 August 2007, following a hearing held on 10 August 2007 attended by the applicant with the assistance of her lawyer, the applicant’s appeal as well as her request for a provisional measure (voorlopige voorziening) were rejected by the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Almelo, who held that the Deputy Minister had rightly rejected the applicant’s second asylum request for not being based on any nova as referred to in article 4:6 of the General Administrative Law Act.
17. Although the applicant could have appealed this ruling to the Administrative Jurisdiction Division, she did not do so.
18. On 7 August 2008 the applicant was presented in person at the Tanzanian mission in Brussels. According to the report on this presentation drawn up on 11 August 2008 by an official of the Repatriation and Departure Service (Dienst Terugkeer en Vertrek) of the Netherlands Ministry of Justice, the 15 minute conversation between the applicant and the Tanzanian officials was conducted in Swahili. In this conversation the applicant indicated that she hailed from Somalia, that she did not hold any document and that she did not wish to go to Tanzania. On the basis of this interview, the Tanzanian mission refused to issue a laissez-passer to the applicant.
19. On 18 January 2009 the applicant gave birth to a son in the Netherlands. On 7 July 2009, also on behalf of her son, the applicant filed a third asylum request. She submitted that it would be difficult for her to return to Somalia with an adulterine son whose circumcision she moreover wished to prevent. She further submitted that she feared she would be killed by her husband or family for having given birth to an adulterine son. She further submitted inter alia that the Embassies of Tanzania and Kenya had indicated that she was not a national of either of those countries, and that her case required a fresh language analysis to be carried out by a person from Kismayo.
20. On 8 July 2009 the Deputy Minister of Justice notified the applicant of her intention to reject her third asylum request for the reason that it was not based on any nova as required under article 4:6 of the General Administrative Law Act. The Deputy Minister noted that the claim that the missions of Tanzania and Kenya had indicated that the applicant was not a Tanzanian or Kenyan national had remained unsubstantiated and that, as regards the risk of future circumcision of her son, the Netherlands asylum policy concerning a risk of circumcision only applied to potential victims of female circumcision. Moreover, as the applicant had not demonstrated that she hailed from Somalia, no value could be attached to her claim that her son risked circumcision in Somalia. The Deputy Minister further held, in the context of an ex officio examination of this question, that the applicant was not eligible for a residence permit for aliens who, through no fault of their own, were unable to leave the Netherlands as she had not demonstrated her alleged identity and nationality. Consequently, it could not be established in respect of which country this question should be examined. On 9 July 2009 the applicant filed her written comments in reply to that intention (zienswijze).
21. In her decision of 13 July 2009, the Deputy Minister rejected the applicant’s third asylum request. She maintained her position that the elements on which the applicant had based her repeat asylum request did not constitute newly emerged facts or altered circumstances within the meaning of article 4:6 of the General Administrative Law Act. The applicant lodged an appeal against this decision, and also applied for a provisional measure in order to be allowed to await the outcome of the appeal proceedings in the Netherlands.
22. On 30 July 2009, following a hearing held on 24 July 2009 attended by the applicant’s lawyer but not the applicant, the provisional-measures judge of the Regional Court of The Hague sitting in Groningen – although finding that the Deputy Minister had correctly and on good grounds concluded that the applicant’s fresh asylum request was not based on newly emerged facts or altered circumstances in respect of the applicant herself – accepted the appeal in respect of the applicant’s son, as his was a first and not a repeat request. Consequently, the provisional-measures judge quashed the impugned decision but further ordered that the legal effects of this decision were to remain valid as the origin and citizenship of the applicant remained undetermined and it was consequently impossible to determine her son’s claim.
23. Although the applicant could have filed an appeal to the Administrative Jurisdiction Division, she did not do so.
24. As the applicant and her son were no longer considered as lawfully staying (rechtmatig verblijf) in the Netherlands pending the determination of a request for a residence title, the provision to them of State-sponsored shelter and care facilities under the Regulation on Provisions for Asylum Seekers (Regeling verstrekkingen asielzoekers) was discontinued as from 23 September 2009,. In order to avoid the situation where they would be forced to live in the streets, the applicant and her son were temporarily admitted to a crisis care centre run by a private foundation. However, they were required to leave this centre by 21 November 2009 at the latest.
25. On 19 November 2009 the President of the Section decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the Netherlands, under Rule 39 of the Rules of Court, to ensure – without prejudice to the merits of the applicant’s complaint under Article 3 of the Convention concerning her expulsion – that the applicant and her son be provided with adequate accommodation pending their effective removal from the Netherlands.
26. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000 (Vreemdelingenwet 2000). Further rules are laid down in the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.
27. Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purposes of asylum if, inter alia,
- he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951, or
- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.
28. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings.
29. Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien’s request for admission to the Netherlands for the purpose of asylum automatically has the following legal consequences:
- the alien is no longer lawfully residing in the Netherlands;
- he/she is required to leave the Netherlands within four weeks;
- he/she is no longer entitled to housing/subsistence benefits, medical care and other State-sponsored reception facilities for asylum seekers; and
- officials entrusted with the supervision of aliens are authorised – if the alien has not voluntarily left the Netherlands within the delay fixed for this purpose – to proceed with his/her effective removal from the Netherlands.
30. Under the preceding Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called “multi-purpose decision” (meeromvattende beschikking).
In a ruling of 3 December 2008 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number – “LJN”] BG5955), the Administrative Jurisdiction Division considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi-purpose decision on a request for a residence permit, that the competence to proceed with effective removal is a legal effect ipso iure (rechtsgevolg van rechtswege) of the refusal of such a request, and that this competence is not of a discretionary nature. Although in principle no further remedy lies against a multi-purpose decision, it also considered that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal.
31. Under the Act on the Central Agency for the Reception of Asylum Seekers (Wet Centraal Orgaan Opvang Asielzoekers) and pertaining regulations, including the Regulation on Provisions for Asylum Seekers and Other Categories of Aliens (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen), the Central Agency for the Reception of Asylum Seekers (“COA”) – an autonomous administrative authority – is responsible for the provision of reception facilities (opvang), which comprise housing, basic subsistence means and health care to asylum seekers.
32. If no residence permit is granted to an asylum seeker, he/she will remain entitled to benefit from the reception facilities for asylum seekers for a period of four weeks after the date of the final decision taken on his/her request. During this period, the person concerned is to seek ways – if need be assisted by the International Organisation for Migration – to leave the Netherlands voluntarily as he/she is no longer lawfully staying in the Netherlands and under a legal obligation to leave. After the expiry of this period, access to reception facilities is automatically terminated without a specific decision. Nevertheless, an alien in such a situation may request COA for continued reception facilities. In case highly exceptional circumstances so require, COA can take a decision to that effect. A negative decision can be appealed to the Regional Court and, subsequently, to the Administrative Jurisdiction Division. Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure pending the outcome of the appeal proceedings.
33. In a ruling given on 25 May 2004 (Jurisprudentie Vreemdelingenrecht [Immigration Law Reports – “JV”] 2004/277), the Administrative Jurisdiction Division found that an alien is considered as having lawful stay (rechtmatig verblijf) in the Netherlands within the meaning of article 8h of the Aliens Act 2000 while an interim measure issued under Rule 39 of the Rules of Court by the President of the Section is in place. For the duration of the validity of this interim measure, the person concerned is not under an obligation to leave the Netherlands and his or her removal from the Netherlands is unlawful. In such circumstances, the alien concerned remains entitled to provision of State-sponsored reception facilities under the Regulation on Provisions for Asylum Seekers and Other Categories of Aliens.