Last Updated on November 5, 2019 by LawEuro
Communicated on 11 January 2018
THIRD SECTION
Application no.23179/12
JoeriZALOILO
against the Netherlands
lodged on 16 February 2012
STATEMENT OF FACTS
1. The applicant, Mr JoeriZaloilo, was born in 1980 and as far as the Court is aware lives in Krimpenaan den IJssel. His nationality is stated to be unknown. He is represented before the Court by Ms H.H.R. Bruggeman, a lawyer practising in Lisse.
A. The circumstances of the case
1. Background to the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was born on 27 February 1980 in Tbilisi, in the Georgian Socialist Soviet Republic to parents who held the nationality of the Union of Socialist Soviet Republics. According to his birth certificate, his father was listed as Ukrainian, his mother as Russian. His father held a Soviet Union passport issued in Georgia in which the applicant was also entered.
4. The applicant and his parents entered the Netherlands in 1992 as asylum-seekers. They were granted residence on humanitarian grounds.
5. The applicant’s parents were granted Netherlands nationality in 1999. The applicant, who by this time was no longer a minor, was not due to his criminal record.
6. On 6 October 2006 the applicant was convicted of aggravated robbery and sentenced to five and a half years imprisonment.
7. On 18 September 2009 the Deputy Minister of Justice (staatssecretaris van justitie) declared the applicant an undesirable alien, entailing the imposition of an exclusion order (ongewenstverklaring) on the ground that he had been convicted of robbery. The Deputy Minister withdrew the applicant’s residence permit with retroactive effect. This decision became final on 18 October 2010 when the Administrative Jurisdiction Division (Afdelingbestuursrechtspraak) of the Council of State (Raad van State) dismissed the applicant’s further appeal (hogerberoep).
8. Pending the applicant’s criminal detention, the Netherlands authorities initiated an investigation as regards the applicant’s nationality. According to an entry dated 9 August 2010 in an official record of proceedings (voortgangsrapportage) by the Departure and Repatriation Service (DienstTerugkeer en Vertrek), the applicant was refused a Georgian laissez-passer on the ground that neither he nor his parents held Georgian citizenship. The Georgian Consul had on 20 October 2008 already issued a written statement to the effect that the applicant was not considered a Georgian citizen.
An entry dated 21 September 2010 records a conversation between an official of the Departure and Repatriation Service and the Georgian Consul in which the latter explains that the applicant could derive Georgian nationality through his parents, but that they – having left Georgia in 1992 – had in the meantime obtained Netherlands nationality. Holders of Soviet Union passports issued in Georgia were required to opt for Georgian nationality before 1993, which the applicant’s parents clearly had not done.
9. On 1 October 2010 the applicant was taken into immigration detention (vreemdelingenbewaring). The applicant appealed against the decision ordering his detention but without success.
10. On 26 October 2010 the Federal Immigration Service of the Russian Federation wrote to the Netherlands embassy in Russia stating that it could not be established that the applicant was a Russian national and he would therefore not be readmitted to Russian territory.
11. On 17 December 2010 the applicant’s lawyer wrote to the Georgian Consul inquiring about the possibilities for the applicant to obtain or reobtain Georgian citizenship. It would appear that no answer to this inquiry was ever received.
12. On 7 January 2011 the applicant escaped from the detention centre.
13. On 12 April 2011 the applicant was taken into detention on remand (voorlopigehechtenis) on a criminal charge. On 13 May 2011, the Rotterdam Regional Court (rechtbank) gave an order extending the applicant’s detention on remand and at the same time suspending it. On the same day the applicant was handed over to the Aliens’ Police (Vreemdelingenpolitie) and again taken into immigration detention on the orders of an officer of that service.
2. First round of proceedings
14. The applicant appealed to the Regional Court of The Hague against the detention order.
15. The Regional Court held a hearing on 16 June 2011. As relevant to the case, the representative of the defendant administrative organ (i.e. the Minister for Immigration, Integration and Asylum Policy (Minister voorImmigratie, Integratie en Asiel) – the successor to the Deputy Minister of Justice as regards immigration matters; hereafter “the Minister”) stated that the applicant’s case was still being discussed with the Russian and Georgian authorities.
16. The Regional Court gave a decision on 23 June 2011. As relevant to the case before the Court, it found that a realistic prospect of the applicant’s expulsion should be considered to exist as long as the possibility of return to Russia was being explored and as long as it was not clear that the applicant could not obtain Georgian nationality. It was not established either that the applicant had made any attempt to obtain Georgian nationality although he was required by law to cooperate in his return to his country of origin.
17. The applicant, through his regular lawyer Ms Bruggeman, lodged a further appeal against the Regional Court’s decision with the Administrative Jurisdiction Division of the Council of State. As relevant to the case before the Court, he pointed to the Russian refusal to readmit him (see paragraph 10 above) and the statements of the Georgian authorities refusing him a laissez-passer (see paragraph 8 above).
18. On 5 August 2011 the Administrative Jurisdiction Division of the Council of State gave a decision dismissing the appeal on summary reasoning.
3. Second round of proceedings
19. On 27 June 2011 the applicant appealed to the Regional Court against the continuation of the detention order. He submitted that his case was being handled with insufficient expedition (voortvarendheid) and that there was no prospect of his expulsion. It had emerged from inquiries with the Departure and Repatriation Service that there were, in actual fact, no discussions pending with the Russian authorities. In addition to the letter of 17 December 2010 (see paragraph 11 above) the applicant had in the meantime contacted the Georgian embassy afresh with a view to obtaining, or reobtaining, Georgian citizenship; he held that he could therefore not be blamed for inaction.
20. On 7 July 2011 the applicant himself had a conversation with the Georgian Consul in preparation of a readmission application request for a Georgian (readmission request). It is recorded that the Georgian Consul informed the applicant that there was a chance that he might be granted Georgian nationality albeit a small one.
21. According to an entry in an official record of proceedings by the Departure and Repatriation Service dated 13 July 2011, the applicant completed and signed the readmission application request in person.
22. The applicant has submitted a photocopy of the readmission application. It is dated 11 July 2011. Next to the applicant’s signature appears the word насильно (Russian for “by force”) in handwriting.
23. On 8 July 2011 the applicant’s lawyer presented a letter in Dutch addressed to the Georgian Consul inquiring about possibilities for the applicant to be granted Georgian nationality and the procedure to be followed. According to an entry dated 11 July 2011 in an official record of proceedings, the Departure and Repatriation Service informed the applicant’s lawyer that a translation into Georgian would not be provided: that was the responsibility of the applicant himself.
24. The Regional Court gave its decision on 19 July 2011. As relevant to the case before the Court, it found that the Minister for Immigration and Asylum (in fact the Departure and Repatriation Service) had been in touch with the Georgian authorities with a view to the applicant’s readmission to Georgia. While recognising that it was primarily the applicant’s responsibility to leave the Netherlands and accordingly to ensure that his request to be granted Georgian citizenship was made in a language the Georgian authorities could understand, the Netherlands authorities could reasonably be expected to lend their support to his efforts; the latter were therefore expected to provide a translation of the letter to be sent. On that understanding the Regional Court found that the Minister had acted with sufficient expedition. Noting, finally, that the applicant had already escaped from detention once (see paragraph 12 above) the Regional Court was satisfied that detention was appropriate.No further appeal lay against this decision.
25. On 26 July 2011 the applicant was presented to the Georgian Consul with a view to his readmission to Georgia. The applicant alleges that he was told by the Consul that he did not qualify for Georgian citizenship. The following day, 27 July 2011, the applicant’s lawyer wrote to the Georgian Consul asking for confirmation in writing that the applicant was not a Georgian citizen and would never be able to obtain Georgian citizenship.
4. Third round of proceedings
26. On 2 August 2011 the applicant’s lawyer lodged a new appeal against his continued detention with the Regional Court, arguing, as relevant to the case before the Court, that the Departure and Repatriation Service had thus far not made any apparent effort to have the letter to the Georgian Consul (see paragraph 23) translated.
27. On 29 July 2011 an official of the Georgian Ministry of Internal Affairs, Department of Patrol Police wrote to the Departure and Repatriation Service in the following terms (original in English):
“Dear Colleagues,
Referring to the readmission request concerning ZALOILO Joeri we would like to inform you that according to the data obtained by our agency the above mentioned person is not a Georgian nationality [sic].
Since, the requirements laid down in Article 2 of the ‘Agreement between the European Union and Georgia on readmission of person residing without authorization’ are not met readmission of the above mentioned person to Georgia cannot be carried out.”
28. On 9 August 2011 an interview in anticipation of the applicant’s departure (vertrekgesprek) took place between the applicant and an official of the Departure and Repatriation Service. According to the official record of this discussion, the applicant alleged that on his presentation to the Georgian Consul, he was told that he could not apply for Georgian citizenship while in detention. According to this official record it was furthermore reported by the official that, according to the Georgian Consul, the applicant during his presentation had not applied for Georgian nationality; the applicant reacted that there must have been a misunderstanding. It was further recorded that a translation of the letter drafted by the applicant’s lawyer (see paragraph 23) had been commissioned.
29. The Regional Court gave its decision on 24 August 2011. As relevant to the case before the Court, it held as follows:
“2.1.5.2. According to settled case-law, set out in, among others, the decision of the Administrative Jurisdiction Division of 1 April 2010 [ECLI:NL:RVS:2010:BM0748] and the Court’s decision in the case of Dolinskiy v. Estonia, no. 14160/08, 2 February 2010, the alien concerned may be expected to offer his active and complete cooperation in his expulsion in order to make it possible, the efforts expected of him in this regard being no less than those that may be expected of him in meeting the duty to leave the country. In its decision of 19 July 2011 [see paragraph 24 above] the Regional Court found that it was not established that the [applicant] could not obtain Georgian citizenship. The Regional Court takes the view that this is not established even now. The [applicant’s] position that based on Georgian legislation allegedly handed to officials of the Departure and Repatriation Service when the [applicant] was presented [to the Georgian Consul] on 26 July 2011 he cannot obtain Georgian citizenship is unsupported by evidence and already for that reason cannot lead the Regional Court to find otherwise. With regard to this position, the Regional Court further points to what it held in this connection in its decision of 19 July 2010. As has also been held in the decision of 19 July 2011, nor does the mere fact that the Georgian authorities have not, until now, decided on the [applicant’s] request of 17 December 2010 to investigate whether the [applicant] can obtain Georgian nationality constitute reason to assume that [the applicant] cannot obtain Georgian citizenship, since it cannot be excluded that the [applicant] can still obtain Georgian citizenship after lodging a request to that effect. The circumstances adduced by the [applicant] that he again requested Georgian citizenship after his request of 17 December 2010, during the presentation of 26 July 2011 and by letter of 8 July 2011, but in vain, cannot alter this finding. After all, it appears from the official record of proceedings [of the Departure and Repatriation Service] that the Georgian Consul did not understand the [applicant’s] visit of 26 July 2011 to be a request to investigate the possibility to obtain Georgian citizenship and the Regional Court has no reason to doubt this information. Moreover, the applicant’s letter of 8 July 2011 has until now not come into the possession of the Georgian authorities and it cannot therefore be excluded at this time that the [applicant] can obtain Georgian citizenship once this letter is received by the Georgian authorities. Given that, until today, it is not established that the [applicant] cannot obtain Georgian citizenship on the ground of the efforts already made by him, there is, for the present, a realistic prospect of expulsion. The fact that the Georgian authorities have rejected the readmission request on 29 July 2011 cannot alter that.
2.1.5.2. As regards the [applicant’s] position that he cannot be expected to cooperate in his expulsion, the Regional Court refers … to what the Administrative Jurisdiction Division held in its decision of 1 April 2010 aforementioned. …”
30. No further appeal lay against this decision.
5. Fourth round of proceedings
31. On 28 August 2011 the applicant again appealed to the Regional Court against his continued detention.
32. It appears that the letter drafted by the applicant’s lawyer (see paragraph 23 above), translated into Georgian, was sent to the Georgian embassy on 29 August 2011.
33. The Regional Court gave its decision dismissing the appeal on 20 September 2011. As relevant to the case before the Court, the reasoning included the following:
“2.3. …
It is not for this Regional Court to rule on whether the [applicant] can obtain Georgian citizenship based on the legislation of Georgia, but for the Georgian authorities, who are considering a request for that purpose. As long as the Georgian authorities have not decided on it, it is not established that the [applicant] cannot obtain Georgian citizenship and it must be assumed that there is a realistic prospect for removal.
2.4. As the Regional Court has held on an earlier occasion, it is also incumbent on the [Departure and Repatriation Service] to support the [applicant] in obtaining Georgian citizenship and regularly to remind the Georgian authorities of the request. The Regional Court presumes that in sending such reminders the [Departure and Repatriation Service] inquires about the time within which a decision is to be expected.
Since the request for the grant of Georgian citizenship was sent to the Georgian embassy on 29 August 2011, it is not yet in issue at this stage whether the [Departure and Repatriation Service] is not handling this aspect of the matter with insufficient expedition.”
34. No further appeal lay against this decision, which is the final decision for purposes of Article 35 § 1 of the Convention.
6. Fifth round of proceedings
35. On 29 September 2011 the applicant lodged another appeal with the Regional Court against his continued detention.
36. On 13 October 2011 the Georgian Consul wrote to the applicant again confirming that he was not listed in the Register of Births, Deaths and Marriages as a Georgian citizen. As to obtaining Georgian citizenship, that fell outside the competence of the clerk of the Register of Births, Deaths and Marriages; the decision lay with the President of Georgia.
37. The Regional Court gave its decision on 21 October 2011. It held the appeal to be well-founded; it ordered the applicant’s release from immigration detention and awarded him monetary compensation for the period from 29 September 2011 until 21 October 2011. As relevant to the case before the Court, its reasoning was as follows:
“2.1. On 17 December 2010 the [applicant] lodged a request with the Georgian authorities to obtain Georgian citizenship. On 29 August 2011 the [Departure and Repatriation Service] supplemented this request with the [applicant’s] birth certificate. However, after that was done, the [Departure and Repatriation Service] only made inquiries to the Georgian authorities about the course of the proceedings on 18 October 2011, prompted by the letter from the Georgian embassy dated 13 October 2011, submitted by the applicant. In so doing the [Departure and Repatriation Service] has, as the [applicant] correctly states, acted with insufficient expedition. The fact that the request was lodged not by the [Departure and Repatriation Service] but by the [applicant] himself does not make any difference in this regard.”
7. Other developments
38. It appears from an official record of proceedings by the Departure and Repatriation Service that a request for a non-asylum-based residence permit lodged by the applicant was refused by decision of 18 August 2011 and that a decision refusing a request for the lifting of the decision declaring the applicant an undesirable alien (see paragraph7 above) was likewise refused on the same day.
39. On 8 November 2011 the clerk of the Register of Births, Deaths and Marriages wrote to the applicant informing him what documents were required to be submitted when requesting Georgian citizenship.
40. In early 2012 the applicant was again arrested on a criminal charge. On 24 May 2012 he was placed in immigration detention.
B. Relevant domestic (Netherlands and Georgian), international and European Union law
1. Relevant Netherlands law
(a) The Aliens Act 2000
41. As relevant to the case before the Court, the Aliens Act 2000 (Vreemdelingenwet 2000) at the relevant time provided as follows:
Section 59
“1. If necessary in the interests of public order or if national security so requires, [the competent Minister] may, for the purpose of expulsion (uitzetting), order the detention of an alien who:
(a) is not lawfully resident;
…
2. If the documents required for the alien’s return are available or will be available in short order, the presumption shall be that the interest of public order requires the alien to be detained, unless the alien has had lawful residence on the ground of section 8 (a)-(e) and (l).
3. Detention of an alien shall not take place if, and shall be terminated as soon as, the alien indicates that he or she is willing to leave the Netherlands and the opportunity for him or her to do so exists.”
Section 61
“1. An alien who does not, or no longer, have lawful residence must leave the Netherlands of his or her own accord …”
Section 67
“1. An alien may be declared undesirable by [the competent Minister]:
…
b. if he or she has been convicted, by a final judgment, of an indictable offence (misdrijf) carrying a prison sentence of three years or more …
…
3. In derogation from section 8 [which defines lawful residence], it is not possible for an alien who has been declared undesirable to have lawful residence.”
(b) Relevant case-law
42. In its decision of 1 April 2010, ECLI:NL:RVS:2010:BM0748, the Administrative Jurisdiction Division of the Council of State, quoting Mikolenko v. Estonia, no. 10664/05, §§ 62-67, 8 October 2009, recognised that an alien’s refusal to lend the cooperation needed for his removal might after a certain time affect the lawfulness of his detention because there would be no prospect of actual removal taking place within a reasonable time. Even so, the alien concerned might be expected to offer his active and complete cooperation in his expulsion in order to make it possible, the efforts expected of him in this regard being no less than those that might be expected of him in meeting the duty to leave the country. In the case in hand, the alien – a Mongolian national – could reasonably be expected to make a statement to the Mongolian authorities to the effect that he was willing to return to Mongolia in order that a travel document might be issued to him. In the circumstances, it could therefore not be said that the alien’s continued detention was not being taken with a view to his deportation merely because he refused to offer the necessary cooperation.
2. Relevant Georgian law
43. As relevant to the case before the Court, the Law of the Republic of Georgia on Citizenship of Georgia at the relevant time provided as follows (unofficial translation published by the Council of Europe[1]):
Section 3
“A citizen of Georgia shall be deemed:
a) A person who permanently resided on the territory of Georgia at least for five years and resides [there][2] as of the date of entry into force of the present law, unless within six months he/she expresses in writing [his/her][3] desire not to be a citizen of Georgia,
b) A person who was born in Georgia but had left the territory of Georgia after 21 December 1991 and thus not fulfilling the requirements set out in paragraph “a” of this Article, if such a person does not have other citizenship.
[c][4]) A person who has acquired citizenship of Georgia in accordance with the present law.”
Section 16
“Citizenship of children up to the age of 14 shall be changed where there is a change in the citizenship of both parents. …”
Section 29
“Citizenship of Georgia may be restored according to the present law for a person whose citizenship has been terminated:
a) as a result of illegal deprivation of citizenship;
b) as a result of renunciation of citizenship;
c) as a result of the parents’ choice. …”
44. This law was repealed in 2014.
3. Relevant international law
45. As relevant to the case before the Court, the Agreement between the European Union and Georgia on the readmission of persons residing without authorisation (published by the European Union in Official Journal L 052, 25/02/2011 P. 047 – 065) provides as follows:
Article 2
Readmission of own nationals
“1. Georgia shall readmit, upon application by a Member State and without further formalities other than those provided for in this Agreement, all persons who do not, or who no longer, fulfil the conditions in force for entry into, presence in, or residence on, the territory of the Requesting Member State provided that it is proved, or may be validly assumed on the basis of prima facie evidence furnished, that they are nationals of Georgia.
2. Georgia shall also readmit:
(a) minor unmarried children of the persons mentioned in paragraph 1, regardless of their place of birth or their nationality, unless they have an independent right of residence in the Requesting Member State or hold a valid residence permit issued by another Member State; and
(b) spouses, holding another nationality, of the persons mentioned in paragraph 1, provided they have the right to enter and stay or receive the right to enter and stay in the territory of Georgia, unless they have an independent right of residence in the Requesting Member State or hold a valid residence permit issued by another Member State.
3. Georgia shall also readmit persons who have been deprived of, or who have forfeited or renounced, the nationality of Georgia since entering the territory of a Member State, unless such persons have at least been promised naturalisation by that Member State.
4. After Georgia has given a positive reply to the readmission application, the competent diplomatic mission or consular office of Georgia shall, irrespective of the will of the person to be readmitted, immediately and no later than within 3 working days, issue the travel document required for the return of the person to be readmitted with a period of validity of 90 days. If Georgia has not, within 3 working days, issued the travel document, it shall be deemed to accept the use of the EU standard travel document for expulsion purposes.
5. If, for legal or factual reasons, the person concerned cannot be transferred within the period of validity of the travel document that was initially issued, the competent diplomatic mission or consular office of Georgia shall, within 3 working days, extend the validity of the travel document or, where necessary, issue a new travel document with a period of validity of the same duration. If Georgia has not, within 3 working days, issued the new travel document or extended its validity, it shall be deemed to accept the use of the EU standard travel document for expulsion purposes.”
4. Relevant European Union law
(a) The Return Directive
46. As relevant to the case before the Court, Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (the “Return Directive”) provides as follows:
Article 15
Detention
“1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:
(a) there is a risk of absconding or
(b) the third-country national concerned avoids or hampers the preparation of return or the removal process.
Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
2. Detention shall be ordered by administrative or judicial authorities.
Detention shall be ordered in writing with reasons being given in fact and in law.
When detention has been ordered by administrative authorities, Member States shall:
(a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;
(b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.
The third-country national concerned shall be released immediately if the detention is not lawful.
3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.
4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.
5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.
6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:
(a) a lack of cooperation by the third-country national concerned, or
(b) delays in obtaining the necessary documentation from third countries.”
(b) Case-law of the European Court of Justice
47. In its judgment of 30 November 2009, Case C‑357/09 PPU (Kadzoev), the European Court of Justice held, inter alia:
“5. Article 15(4) of Directive 2008/115 must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6), corresponds to a reasonable prospect of removal, and that that reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods.
6. Article 15(4) and (6) of Directive 2008/115 must be interpreted as not allowing, where the maximum period of detention laid down by that directive has expired, the person concerned not to be released immediately on the grounds that he is not in possession of valid documents, his conduct is aggressive, and he has no means of supporting himself and no accommodation or means supplied by the Member State for that purpose.”
COMPLAINT
48. The applicant complains under Article 5 § 1 (f) of the Convention that he was kept in detention for an excessive length of time during which no realistic prospect of his actual expulsion existed.
QUESTIONS TO THE PARTIES
1. What is the significance of the word насильно that appears next to the applicant’s signature on the readmission application dated 11 July 2011?
2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the deprivation of liberty during the period between 13 May 2011 and 29 September 2011 justified within the meaning of sub-paragraph (f) of this provision (see Quinn v. France, 22 March 1995, § 48, Series A no. 311; Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996‑V; Slivenko v. Latvia[GC],no. 48321/99, § 146, ECHR 2003‑X; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009?)
_______________
[1]https://www.coe.int/t/dghl/standardsetting/nationality/National%20legislation/Georgia%20Law%20on%20Citizenship_ENG.pdf
[2] Emendation by the Registry
[3] Emendation by the Registry
[4] Emendation by the Registry
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