Netherlands - Council of State, 4 July 2011, 201103855/1/V2
| Country of Decision: | Netherlands |
| Court name: | ABRvS (Afdeling Bestuursrechtspraak Raad van State) |
| Date of decision: | 04-07-2011 |
| Citation: | 201103855/1/V2 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility 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." |
Headnote:
Partly as a result of his detention, the foreigner's financial resources are limited. The obligation to pay €227.00 in court fees for the processing of an appeal therefore constitutes a major breach of the right to access to justice guaranteed under Article 47 of the Charter of Fundamental Rights of the European Union, amongst other provisions. The appeal should therefore have been examined on its merits despite the court fees not being paid.
Facts:
In his decision of 18 May 2010, the Minister of Justice, on the basis of Article 27 of Directive 2004/38/EC, terminated the foreigner's right to remain, in the context of an objection by the foreigner (who is an EU citizen). In its judgment of 2 March 2011, the Court declared the appeal lodged by the foreigner against this decision to be inadmissible, as he had not paid the court fees owed. The foreigner appealed against this judgment. The foreigner told the Council of State that he could not pay the court fees owed and requested exemption from the obligation to pay them. The foreigner said that his financial resources, partly as a result of his detention, were so limited that, in his case, the obligation to pay the court fees constituted a breach of his right to access to justice.
Decision & reasoning:
The Council of State found that the foreigner had been detained since 21 December 2007 in the high-security facility in Vught. There is no evidence that the foreigner has any assets. He also has no income other than what he earns at the high-security facility. His hourly pay is a maximum of €0.76, and he has no entitlement to a set number of working hours per week. In these circumstances, the obligation to pay €227.00 in court fees for an appeal to be processed constitutes a major breach of the right to access to justice guaranteed under Article 47 of the Charter of Fundamental Rights of the European Union, amongst other provisions. It should also be borne in mind that the decision to terminate the right to remain was a decision taken ex officio by the minister and was not in the foreigner's favour. The fact that the foreigner has not paid the court fees also does not stand in the way of the appeal being examined on the merits. The Council of State furthermore found no evidence in the case file to support any other conclusion with regard to the appeal procedure, for which court fees of €150.00 are chargeable. The Court therefore wrongly failed to examine the appeal lodged by the foreigner on its merits.
Outcome:
The Council of State upheld the appeal and overturned the contested judgment.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Vreemdelingenbesluit 2000 (Foreigners Act) |
| Netherlands - Council of State Act |