AS TO THE ADMISSIBILITY OF
Application No. 33715/96
by Hendrik Cornelis DRAYER
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 May 1996 by
Hendrik Cornelis DRAYER against the Netherlands and registered on
8 November 1996 under file No. 33715/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1942, and resides in
Zwolle, the Netherlands. In the proceedings before the Commission, he
is represented by Mr S.C. de Lange, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 6 October 1983, the public prosecutor of Amsterdam issued an
international arrest warrant in respect of the applicant, who was
suspected of fraudulent bankruptcy. The applicant was arrested in
Belgium on 23 March 1985. He remained in detention throughout the
subsequent extradition proceedings.
On 29 March 1985, the public prosecutor of Amsterdam transmitted
the official documents relating to the criminal proceedings against the
applicant to the Netherlands Ministry of Justice. On 2 April 1985, the
Netherlands authorities addressed a formal request for the applicant's
extradition to the Belgian authorities.
By letter of 24 May 1985, the Belgian Minister of Justice
(Minister van Justitie) informed the Dutch Deputy Minister of Justice
(Staatssecretaris van Justitie) that the applicant's extradition in
order to stand trial for fraudulent bankruptcy was permissible. It was
further stated that the Belgian Minister would inform the Dutch Deputy
Minister at some later point in time of the date and place of the
actual extradition.
On 28 May 1985, the Deputy Minister of Justice transmitted a copy
of the letter of 24 May 1985 to the public prosecutor of Amsterdam. On
7 August 1985, the public prosecutor requested the Dutch Ministry of
Justice to give information about the state of affairs as regards the
execution of the applicant's extradition.
The applicant was extradited on 22 August 1985 and released the
same day. By judgment of 7 May 1987, the Regional Court
(Arrondissementsrechtbank) of Amsterdam acquitted the applicant of the
charges against him.
On 4 May 1986, the applicant complained to the Dutch National
Ombudsman of the delay between his arrest on 23 March 1985 and his
actual extradition on 22 August 1985. He submitted that, although he
had agreed to a so-called abbreviated extradition procedure provided
for in Article 19 of the Benelux Extradition Treaty (Benelux
Uitleveringsverdrag), he was only extradited after about five months.
According to the applicant, this delay was to be attributed to the
failure of the Dutch Minister of Justice to act promptly.
After an investigation, the National Ombudsman concluded on
23 June 1987, that the Minister of Justice had acted in an improper
manner towards the applicant by not clearly responding to the request
by the Belgian authorities for approval of the abbreviated extradition
proceedings and the failure to directly take action on the decision
allowing the applicant's extradition to the Netherlands.
On 29 July 1987, the applicant filed a request under Article 89
of the Netherlands Code of Criminal Procedure (Wetboek van
Strafvordering) with the Regional Court of Amsterdam for damages
relating to his pre-trial detention.
In its decision of 8 August 1988, the Regional Court awarded the
applicant compensation in a total amount of 199,700 Dutch guilders for
pecuniary and non-pecuniary damage in respect of his detention in
Belgium pending extradition to the Netherlands. In this decision the
Regional Court held, inter alia:
"Damages resulting from the detention for extradition
The Court has noted the report issued by the National Ombudsman
on this subject. Also on grounds of this report, the court
considers that an amount of 150,000 Dutch guilders can be awarded
for non-pecuniary damage suffered."
The Regional Court awarded an additional amount of 49,700 Dutch
guilders for pecuniary costs relating to loss of income and to lawyers'
fees and other costs.
On 16 June 1989, the applicant started civil proceedings against
the Netherlands State before the Regional Court of The Hague, seeking
a declaratory judgment that the Dutch authorities had acted unlawfully
towards him by failing to co-operate in an expeditious extradition of
the applicant and seeking financial compensation for this unlawful act.
On 12 June 1991, the Regional Court found against the applicant
and, consequently, rejected his request for compensation. It held,
inter alia, that the Netherlands authorities had not deviated from the
normal procedures between the Netherlands and Belgium as regards
extradition requests and that there were no facts or circumstances on
grounds of which it should be held that the Netherlands State had acted
unlawfully towards the applicant.
The applicant's appeal against the judgment of 12 June 1991 was
rejected on 21 July 1994 by the Court of Appeal (Gerechtshof) of The
Hague. His subsequent appeal in cassation was rejected by the Supreme
Court (Hoge Raad) on 1 December 1995. As to the applicant's complaint
of the duration of the extradition proceedings, the Supreme Court
upheld the finding of the Court of Appeal that there is no legal
obligation to apply the abbreviated procedure as opposed to the regular
procedure as regards extradition requests between the Netherlands and
Belgium and that in this connection no special circumstance arises
where a person whose extradition has been requested has agreed to an
abbreviated procedure.
COMPLAINTS
Referring to the case of Kolompar v. Belgium (Eur. Court HR,
Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C),
the applicant complains under Article 5 para. 1 (f) of the Convention
of the length of his detention pending his extradition to the
Netherlands. He submits that, if the Netherlands had applied the proper
procedures and had executed the extradition order immediately, he would
have been released months earlier.
THE LAW
The applicant complains under Article 5 para. 1 (f)
(Art. 5-1-f) of the Convention of the length of his detention pending
his extradition to the Netherlands.
Article 5 para. 1 (f) (Art. 5-1-f) of the Convention reads as
follows:
" Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view to
deportation or extradition."
The Commission notes that the applicant's complaint about the
duration of his detention pending extradition as a consequence of the
failure of the Dutch authorities to act with due diligence was
considered by the Netherlands National Ombudsman to be well-founded.
The Commission further notes that on 8 August 1988, also in view of the
National Ombudsman's findings, the Regional Court awarded the applicant
compensation for non-pecuniary damage under Article 89 of the Code of
Criminal Procedure in an amount of 150,000 Dutch guilders in respect
of the time the applicant had spent in detention pending extradition.
It is true that an issue could arise under Article 5 para. 1 (f)
(Art. 5-1-f) of the Convention in respect of the duration of the
applicant's detention pending extradition as a consequence of the Dutch
authorities' failure to act with due diligence (cf. Eur. Court HR,
Chahal v. United Kingdom judgment of 15 November 1996, Reports 1996-V,
No. 22, para. 113).
However, in the present case the Commission considers that, in
view of the reasons given in the Regional Court's decision of
8 August 1988 for awarding the applicant compensation for non-pecuniary
damage in respect of his detention pending his extradition, the
applicant can no longer claim to be a victim within the meaning of
Article 25 (Art. 25) of the Convention of the duration of his detention
pending in that he can be considered as having obtained adequate
reparation at the domestic level.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy