The Netherlands: Secretary of State fails to explain why no less coercive measure than detention is taken

Wednesday, April 5, 2017

On 5 April 2017 the Council of State of the Netherlands judged that the Secretary of State, by not reacting to the psychological problems of the applicant, had failed to explain why no less coercive measure than detention was taken. According to an earlier decision of the Council of State, the Secretary of State always has to justify why no less coercive measure can be taken, thereby judging, in addition to the grounds for detention and the explanation regarding these grounds, whether the applicant has introduced particular facts or circumstances that make the detention measure disproportionate.
During the interview the applicant had indicated - in response to the question whether there were facts or circumstances which would make detention disproportionate - that he had medical problems. He thereby indicated problems on his foot and psychological problems. He indicated that, being detained in the Netherlands, he is reminded of his detention in Sri Lanka, and he has nightmares about himself and his children being captured by militia. As the Secretary of State did not explicitly include these circumstances in the assessment, he had not sufficiently explained why a less coercive measure than detention was not sufficient. A simple reference to the applicant’s sleeping problems does not prove that the Secretary of State took into account the psychological problems. Moreover, the fact that the applicant can go to a doctor in the detention center for his psychological problems does not absolve the Secretary of State from his obligation to react to these problems in the assessment of possible less coercive measures.
Based on an unofficial translation by the ELENA Weekly Legal Update.

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Vulnerable person