Key facts of the case:
The appellant was detained as an alien on the basis of a decision of 23 August 2012. On 17 September 2012 the District Court dismissed the appellant’s appeal and rejected his claim for compensation. The appellant relies on article 6 of the Charter, which lays down the right to liberty and security and article 47 of the Charter, which says: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.” The appellant states that he was not heard within a reasonable time after his detention as an alien. His appeal was on the sixth day after his detention and the District Court heard him on the eighteenth day. The District Court holds that this was as soon as possible. The appellant states that the Dutch provisions which apply to detention in general should have applied to his case, too. These provisions lay down that the court should ex officio assess the case of someone who is detained within three days and fifteen hours (Code on Criminal Procedure). There should be no difference between regular detention and the detention of aliens. The procedure followed is in conflict with article 6 and 47 of the Charter, among other things, especially the requirement to be brought promptly before a tribunal. The Administrative Jurisdiction Division of the Council of States judges, however, that the appellant was brought promptly before a tribunal on the basis of judgements by the ECtHR, which make the answer to this question dependent on the circumstances of the case. Article 6 of the Charter applies, rather than article 47, as it specifies article 47 of the Charter. A second point that the appellant raises is that the judgement about the decision to detain him should have been taken in the light of the lawfulness of the decision to return him to his home country. Only this is an effective remedy. The judgement about the decision to detain him was dealt with by the court on 10 September 2012; the judgement about the decision to return him to his home country was dealt with by the court on 17 October 2012.
Outcome of the case:
The Administrative Jurisdiction Division of the Council of State holds that in this case, too, the appellant relies on Article 6 of the Charter, which specifies Article 47 of the Charter (effective remedy). The Administrative Jurisdiction Division of the Council of State allows the appeal, saying that the judgement about the decision to detain the appellant should have been pronounced at the same time as the judgement about the lawfulness of the decision to return him to his home country, as the first decision depends on the circumstances of the second decision. Questions raised: does article 6 of the Charter allow a difference in treatment of regular detainees and the treatment of aliens who are detained, where the time period within which they are heard by the court differs? Does article 6 of the Charter make it necessary for a court in terms of an effective remedy to judge the decision to detain an alien and the decision to return him to his home country at the same time?
The question whether there is a prompt decision should be answered in the light of the circumstances of the case (see among other things the ECtHR judgement of 21 October 1986, Sanchez Reisse vs Switzerland , no. 9862/82; www.echr.coe.int). The alien appealed against the decision of 23 August 2012 on 29 August 2012. The Disctrict Court heard the appeal within the time limit, laid down in article 94, subsection 2, of the Aliens Act 2000 on 10 September 2012, after which it ended the investigation. The District Court pronounced its judgement about the appeal on 17 September 2012 within the time limit laid down in article 94, subsection 3, of the Aliens Act. In view of the de judgements of the ECtHR of 18 September 2001, Erdogan vs the Netherlands, no. 49820/99 and of 1 October 2002, Tekdemir vs the Netherlands, nos. 46860/99 and 49823/99 (www.echr.coe.int) and due to a lack of special individual facts and circumstances, which should have been mentioned by the appellant, which would have prompted an earlier judgement in his case, the District Court judged promptly in the sense of article 5, subsection 4 of the ECHR, now that it pronounced its judgement against the appeal within nineteen days. In view of the above there is no violation of article 6 of the Charter, in so far as this article guarantees a right to an effective legal remedy, among which a prompt judicial decision, nor is it an infringement of article 5 of the ECCHR, so that the appeal fails in this respect. An immediate discontinuance of the detention, ordered by the District Court, is because of the above-mentioned reasons not safequarded when appeals,submitted at the same time or nearly the same time, against the separate decision to return an alien to his home country and against the measure of detention are not heard at the same time. It is therefore in conflict with the essence of the right to an effective legal remedy laid down in article 6 of the Charter, i.e. the right to an immediate release when the detention is unlawful. Article 6 of the Charter therefore requires that the District Court hears appeals against a separate decision to return an alien to his home country and a against the decision to detain him, when they have been submitted at the same time or nearly the same time, at the same time, also when the alien has not made an express request.