AS TO THE ADMISSIBILITY OF
Application No. 12732/87
by Marja ATSMA
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 February
1987 by Marja ATSMA against the Netherlands and registered on 12
February 1987 under file No. 12732/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1961 and at present
residing in Amsterdam. She is represented in the proceedings before
the Commission by Mr. G. Hamer, a lawyer, practising in Amsterdam.
The facts, as submitted by the applicant, may be summarised as
follows:
In October 1985 the applicant had been detained for some time
in a prison (Penitentiaire Inrichting). During her detention the man
with whom she had cohabited before her detention frequently visited
her.
On 22 October 1985 he visited the applicant again.
During this visit one of the warders thought he saw the applicant
receiving a parcel from the visitor. A violent struggle between the
warders and the visitor ensued. After a search of the applicant and
her visitor no parcel was found.
By letter of 23 October 1985 the Director of the prison
informed the applicant's friend of her decision not to permit further
visits to the applicant during her detention. The applicant was
punished by solitary confinement for seven days.
By letter of 5 November 1985 the Deputy Director of the prison
informed the applicant of his decision not to allow the applicant's
friend to visit her during the rest of her detention.
On 8 November 1985 the applicant lodged a complaint with the
Supervisory Commission (beklagcommissie) of the prison. On the same
day she asked the "Month Commissioner" ("maand-commissaris") of the
prison to suspend the decision not to allow the applicant's friend to
visit her. The Month Commissioner did not suspend this decision.
By decision of 28 November 1985 the Supervisory Commission
declared the applicant's complaint well-founded. It held that under
the Prison Measure (Gevangenismaatregel) a detained person should be
informed of a decision not to allow certain persons to visit him
within 24 hours, in writing and with a statement of the reasons.
Since these requirements had not been met, the decision of the Prison
Board was null and void.
The Supervisory Commission announced that its President would
consider whether any compensation should be awarded, in consultation
with the Director of the Prison, in accordance with Section 57 para.
3 of the Principles of the Prison System Act (Beginselenwet
Gevangeniswezen).
By letter of 9 December 1985 the Director of the Prison
informed the applicant that her friend could again apply for visits.
By letter of 23 January 1986 the Secretary of the Supervisory
Commission informed the applicant that a decision on compensation had
not yet been taken as the Director of the Prison was on holiday.
On 27 January 1986 the applicant was released.
On 25 March 1986 the President of the Supervisory Commission
decided that no compensation would be granted to the applicant as the
applicant's complaint against the decision not to allow her friend to
visit her had been declared well-founded on merely formal grounds and
that he found the decision a reasonable one in the circumstances.
On 2 April 1986 the applicant appealed to the Prison System
Section of the Central Advisory Council for the Prison System, the
Care of Psychopaths and the Rehabilitation of Convicts (Centrale Raad
van Advies voor het Gevangeniswezen, de Psychopathenzorg en de
Reclassering). She submitted, inter alia, that the President of the
Supervisory Commission had taken his decision contrary to Article 6 of
the Convention because he had taken his decision in consultation with
the Director of the Prison without even hearing the applicant.
By letter of 15 April 1986 the applicant requested the Central
Advisory Council to hold a public hearing in her case, invoking
Article 6 of the Convention.
By letter of 13 May 1986 the Secretary of the Appeal
Commission of the Prison System Section of the Central Advisory
Council informed the applicant that her case would be dealt with in
writing. He submitted that Article 6 was not applicable in her case
since the determination of compensation in connection with a complaint
that had been found well-founded did not amount to a determination of
"civil rights and obligations" or "any criminal charge".
By letter of 16 May 1986 the applicant asked the Secretary of
the Appeal Commission of the Prison System Section of the Central
Advisory Council for a report on, or the records of, proceedings of
the consultation between the President of the Supervisory Commission
and the Director of the Prison and the documents sent between them
concerning the compensation decision. By letter of 22 May 1986 the
Secretary of the Appeal Commission of the Prison System Section of the
Central Advisory Council informed the applicant that the only existing
written document was the decision on compensation itself.
By letter of 21 May 1986 to the Secretary of the Appeal
Commission of the Prison System Section of the Central Advisory
Council the applicant explained her appeal further. She invoked
Article 8 of the Convention.
By decision of 14 August 1986 the Appeal Commission of the
Prison System Section of the Central Advisory Council rejected the
applicant's appeal. It held that the Director of the Prison could
reasonably have taken the decision. It also held that Article 6 of
the Convention was not applicable to procedures concerning the
establishment of compensation conducted after a complaint procedure in
which the parties could be heard.
COMPLAINTS
1. The applicant complains that the President of the Supervisory
Commission took his decision in consultation with the Director of the
Prison, who was one of the parties in the conflict concerning the
visits of the applicant's friend, whilst not consulting the applicant;
that the President of the Supervisory Commission waited to decide on
compensation until the Director of the Prison had returned from
holiday, which made compensation during her detention impossible; that
neither the President of the Supervisory Commission nor the Central
Advisory Council pronounced judgment publicly; that in their
decisions, the President of the Supervisory Commission and the Central
Advisory Council considered that the decision of the Director of the
Prison was reasonable, despite that the Supervisory Commission had
before declared that the decision was null and void and, therefore,
non-existent, and, that no public hearing took place before the
Central Advisory Council and that she, therefore, could not orally
explain her case.
The applicant invokes Article 6 of the Convention. She
submits that under Section 57 para. 3 of the Principles of the Prison
System Act, the President of the Supervisory Commission has to
consider whether compensation is possible, after the Supervisory
Commission has revised a decision upon a complaint by a detained
person where either a disciplinary punishment has been executed in
whole or in part, or the consequences of said decision can no longer
be undone. In special cases a monetary compensation may be granted.
The applicant submits that she, therefore, has a right to
compensation. This right is a "civil right" within the meaning of
Article 6 of the Convention, in her view.
2. The applicant complains that the decision of the Director of
the Prison not to allow the applicant's friend to visit her anymore
amounted to an interference with the applicant's private and family
life. This interference was not in accordance with the law since the
applicant was not informed of the decision within 24 hours in writing,
as required by the Prison Measure. Since the President of the
Supervisory Commission and the Central Advisory Council did not grant
any compensation, they let the violation pass unperceived and,
therefore, no effective remedy was available. The applicant invokes
Articles 8 and 13 of the Convention.
THE LAW
1. The applicant has complained of the proceedings before the
President of the Supervisory Commission and the Central Advisory
Council concerning compensation for a decision to impose a
disciplinary punishment that had been declared null and void. The
applicant has invoked Article 6 (Art. 6)of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides:
"In the determination of his civil rights and
obligations..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and
impartial tribunal established by law".
The Commission notes that, under Section 57 para. 3 of the
Principles of the Prison System Act, the President of the Supervisory
Commission has to consider whether compensation is possible, after the
Supervisory Commission has revised a decision upon a complaint by a
detained person where, either a disciplinary punishment has been
executed in whole or in part, or the consequences of said decision can
no longer be undone. In special cases a monetary compensation may be
granted. Accordingly, the Commission observes that no right to any
particular compensation exists.
Consequently, the Commission is of the opinion that the
proceedings at issue did not concern the determination of any civil
right of the applicant and, therefore, fall outside the scope of
Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has complained of an interference with her
private and family life contrary to Article 8 (Art. 8) of the Convention.
In respect of Article 8 (Art. 8) the Commission notes that on 23
October 1985 the Director of the prison informed the applicant's
friend that he was no longer allowed to visit the applicant. By
letter of 5 November 1985 the applicant herself was informed of this
decision. By decision of 28 November 1985 the Supervisory Commission
declared the decision null and void. By letter of 9 December 1985 the
Director of the Prison informed the applicant that her friend could
again apply for visits to her.
The Commission concludes that the applicant obtained adequate
redress at the domestic level for the alleged violation of Article 8
of the Convention. She is therefore no longer able to claim to be a
victim within the terms of Article 25 para. 1 (Art. 25-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
3. The applicant has further complained that no effective remedy
was available to her since she did not receive any compensation for
the alleged lack of respect for her private and family life. She
invokes Article 13 (Art. 13) of the Convention.
Article 13 (Art. 13) of the Convention is worded in the following
terms:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
It is established case law of the Commission that the word
"remedy" in this sense does not mean that the applicant's claim must
be vindicated and that the applicant must "win" (No. 10496/83, Dec.
14.5.84, D.R. 38 p. 189).
The Commission notes that in the present case the applicant
lodged a complaint with the Supervisory Commission against the
decision of the prison board not to allow her friend to visit her.
This complaint was successful to the extent that the decision was
declared void and that as from 9 December 1985 on the applicant's
friend could again apply for visits to her. The complaint was not
successful to the extent that no compensation, for example monetary
compensation, was granted to the applicant.
An examination by the Commission of this complaint as it has
been submitted does not therefore disclose any appearance of a
violation of Article 13 (Art. 13) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)