Communicated on 24 April 2017
Application no 29593/17
Francesco CORALLO
against the Netherlands
lodged on 20 April 2017
STATEMENT OF FACTS
1. The applicant is a Dutch national born in 1960, who is currently residing on the island of Sint Maarten in the Caribbean part of the Kingdom of the Netherlands. He is represented before the Court by Mrs C. Reijntjes-Wendenburg, a lawyer practising in Maastricht.
2. The facts of the case, as submitted by the applicant may be summarised as follows.
3. On 21 November 2016 an Italian court ordered the provisional arrest of the applicant as he was suspected of participating in a transnational criminal association aimed at misappropriation of money, money-laundering and tax evasion in Italy. In anticipation of the official request for extradition, the applicant was arrested on 13 December 2016 and placed in custody at the Philipsburg police station. On 15 December 2016, the investigating judge (rechter-commissaris) found the continuance of the provisional arrest lawful.
4. In the days following his arrest, the applicant was visited several times by a doctor, who found that the applicant had received treatment for a malignancy on his tongue in 2015, and that this should be monitored regularly. In addition, the applicant’s blood pressure was too high. He was prescribed medication and after a few days, the applicant’s blood pressure had sufficiently decreased. According to a letter, dated 23 December 2016, of the doctor to the public prosecutor, the applicant was in good health, was not at that time experiencing any exacerbations of past ailments and his blood pressure was responding well to medicinal treatment. The doctor concluded that there were no medical impediments to the applicant’s detention.
5. On 19 December 2016 the applicant lodged an application to the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba (Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en Saba; hereinafter “the Joint Court”) requesting the suspension of his detention. The applicant argued that detention should be the ultimum remedium. In addition, he alleged that his delicate health and business interests made it impossible for his detention to continue. The Procurator General (procureur-generaal) opposed a suspension of the detention because he considered the applicant a flight risk since he owned a private jet. In addition, multiple identity cards had been found during a search of the applicant’s premises. On 4 January 2017 the Joint Court rejected the applicant’s request. It found that the applicant had not made a plausible case for believing that he had been unable to receive adequate medical care while in detention or that his business interests were at risk.
6. On 12 January 2017, the official Italian request for extradition, dated 30 December 2016, was received by the Minister Plenipotentiary of Sint Maarten (Gevolmachtigd Minister van Sint Maarten).
7. On 2 February 2017, the applicant lodged a new petition, requesting the Joint Court to either terminate or suspend his detention. With reference to the Extradition Decree of Aruba, Curaçao and Sint Maarten (Uitleveringsbesluit van Aruba, Curaçao en Sint Maarten), the applicant argued that he could only be extradited if the Italian authorities provided a guarantee that he may be returned to the Netherlands to serve a custodial sentence imposed on him. In addition, the applicant argued that pursuant to the Convention on the Transfer of Sentenced Persons, Italy was to provide a guarantee that a sentence imposed on him could be converted into a sanction prescribed by Dutch law for the same offence. Since Italy had made a reservation excluding the application of that procedure, such a guarantee would not be forthcoming. As a result, the prospects of the request for extradition being granted were at best highly doubtful and, for that reason, his detention ought to be terminated or suspended.
8. Furthermore, the applicant argued that his health situation was delicate and that he was susceptible to infections which could have far-reaching consequences for him. For that reason hygiene and adequate medical care were essential, but it was well-known that the medical care provided in the detention centres in Sint Maarten and Curaçao left much to be desired. In addition, he had pressing business interests requiring his detention to be either terminated or suspended.
9. Finally, the applicant submitted that the police cell in which he was detained was unsuitable for a long-term stay.
10. The acting Procurator General argued that the applicant’s petition should be denied. According to him, it was premature to say that the Italian authorities would not provide the necessary guarantees; this was a political consideration for the Italian Minister of Justice. In addition, it was for the Governor [of Sint Maarten, i.e. the representative of the Head of State of the Kingdom of the Netherlands] to decide which guarantees should be provided. Furthermore, the acting Procurator General argued that nothing in the file showed that the applicant was unfit to be detained. With regard to the applicant’s business interests the acting Procurator General noted that the applicant had stated in a previous interview that he had retired and was now merely a shareholder of the company. In that light, the applicant had failed to substantiate his business interests.
11. In a decision of 8 March 2017 the Joint Court rejected the applicant’s petition. It found that it could not act in anticipation of the extradition procedure since the question before it concerned the legality of the extradition detention. All formalities for that detention had been fulfilled. The personal situation of the applicant relating to his medical situation and business interests had already been taken into account in the Joint Court’s decision of 4 January 2017 and it had not appeared that, two months later, there were facts or circumstances which should lead to another conclusion. Finally, the Joint Court saw no reason to grant the applicant bail.
12. Meanwhile, on 22 February 2017 the Joint Court had ruled, at the request of the applicant, that the acting Procurator General did not have the authority to order the detention of the applicant in a penitentiary in another country of the Kingdom of the Netherlands.
13. On 13 March 2017, the applicant was visited by a dentist who diagnosed a gum/periodontal infection around a tooth which had to be extracted. In addition, the dentist prescribed antibiotics and a disinfectant for irritated gums. The dentist recommended that the applicant be provided with vitamin B and iron to cope with vitamin and mineral deficiencies. In addition, he recommended that the applicant be seen by a dentist every three to four months to avoid similar infections. On 3 April 2017, the dentist reported that the infection had subsided but that the build-up of plaque was already visible again. This build-up was probably due to the lack of possibilities for oral hygiene.
14. Meanwhile, on 21 March 2017, the applicant had lodged a new petition requesting either a release from or suspension of his detention, or a transfer to the sick bay at the Point Blanche penitentiary (also in Sint Maarten). With reference to the most recent report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (“CPT”) on the Caribbean part of the Kingdom of the Netherlands of 25 August 2015, the applicant submitted that the conditions of his detention amounted to treatment contrary to Article 3 of the Convention. According to the CPT, conditions in the Philipsburg police cells were inadequate and poor, and it had held that persons should not be detained there in excess of three days and in any event never longer than ten days. The facility being totally inappropriate for holding remand and sentenced prisoners, the CPT had recommended that they be moved to alternative accommodation as soon as possible. However, the applicant had been staying for three months in a cell which measured 16 square meters and which he often had to share with five, six or seven other persons. Furthermore, the cells were dark and unhygienic and there was a foul smell. The unhygienic circumstances had caused the applicant’s infection referred to in the dentist’s report of 13 March 2017 (see paragraph 13 above).
15. In response to the petition, the Procurator General argued that, while the circumstances of detention on Sint Maarten could be improved, the applicant had objected to a transfer to Curaçao where better circumstances of detention pertained. In addition, the police cells in which the applicant was staying had been assigned as a remand centre (huis van bewaring). He had been detained in a cell with two other persons and was staying alone in a cell since 28 March 2017. As regards the applicant’s state of health, the Procurator General referred to the doctor’s letter of 23 December 2016 (see paragraph 4 above), and submitted that the dentist’s report (see paragraph 13 above) was insufficient to conclude that the applicant was not fit to be detained.
16. Five days prior to the hearing before the Joint Court the applicant was transferred to a single-occupancy cell. Immediately after the hearing he was returned to a multi-occupancy cell.
17. The Joint Court rejected the applicant’s petition on 12 April 2017. It found that nothing in the applicant’s personal circumstances had changed since the previous two requests. It took into account that the applicant was, at the time of the hearing, alone in a cell, that he was receiving daily vitamin supplements and had access to a doctor and/or dentist if requested. In addition, the Joint Court took into account that the applicant had refused to cooperate with a transfer to Curaçao. Finally, the Joint Court discerned no medical reason for a transfer of the applicant to the sick bay of the Point Blanche penitentiary. The applicant’s request was denied.
18. After the Joint Court’s ruling, the applicant was once more placed in a single-occupancy cell. However, on 18 April 2017 he was informed that he would have to share the police cell with others again.
19. On 20 April 2017, the applicant was visited by his general practitioner who, in a written statement dated 23 April 2017, expressed surprise at the fact that the applicant had only been seen by a doctor once whilst in detention. The general practitioner found that the applicant’s blood pressure was too high. In addition, he found that the scar caused by the surgical removal in 2016 of a malignancy on the applicant’s tongue did not look well and he recommended that the applicant be seen by a specialist as soon as possible.
20. After a request thereto from the standing committee on Kingdom Relations of the Lower House of Parliament, the Minister of Interior and Kingdom Relations informed the Lower House, via its Chairman, on 21 April 2017 about the applicant’s current place of detention. In addition, the Minister informed the Lower House that the extradition request would be examined by the Joint Court on 16 May 2017. Taking into account the possibility of appeal, the Minister stated that it was possible that the actual extradition would only take place in the summer of 2018.
ComplaintS
The applicant complains that his detention at the Philipsburg police station amounts to inhuman and degrading treatment contrary to Article 3 of the Convention. In addition, the applicant complains under Articles 5 and 6 § 2 that the Joint Court failed to investigate the possibility of suspending his detention.
QUESTIONS
1. In light of the report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment on its visit to the Caribbean part of the Kingdom of the Netherlands, dated 25 August 2015, does the applicant’s detention at Philipsburg police station amount to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?
2. Do the material conditions of the applicant’s detention, in particular the personal space available to him in the cells he is, and has been staying in and the sanitary conditions therein, amount to inhuman or degrading treatment? In addition, the Government are requested to specify how many square meters of living space the applicant has been having available to him during his detention and what the sanitary conditions are of the cells in which the applicant is, and has been, staying.
3. Do the circumstances and manner of the treatment by the prison authorities of the applicant’s ailments amount to inhuman or degrading treatment?
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