AS TO THE ADMISSIBILITY OF
Application No. 19084/91
by Louis HAGEMANN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 April 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
Mr. K. ROGGE, Secretary to the Second 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 11 October 1991
by Louis HAGEMANN against the Netherlands and registered on 18 November
1991 under file No. 19084/91;
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 citizen, born in 1955. When introducing
his application, he was detained in a prison at Maastricht, the
Netherlands. He is represented before the Commission by Mr. H.E.G.
Peters, a lawyer practising at Sittard, the Netherlands.
The facts as presented by the applicant may be summarised as
follows.
On 12 December 1990, while the applicant was serving a prison
sentence at Sittard, the Prison Director decided that he should be
separated from the other prisoners for a period of 30 days. On 15
December 1990, the applicant appealed against this decision to the
Complaints Board (beklagcommissie) at the prison at Sittard. A hearing
of the appeal was held at the prison at Sittard on 26 March 1991. The
applicant was then transferred to another prison, but he had been heard
on his appeal in that prison. On 26 March 1991, the Complaints Board
declared the appeal well-founded as regards that part of the measure
of separation which exceeded 14 days but unfounded as to the rest.
The Prison Director as well as the applicant appealed against the
decision of the Complaints Board. The appeal was examined by the
Appeals Board of the Penitentiary Section of the Central Board for
Criminal Law Application (beroepscommissie uit de sectie
gevangeniswezen van de Centrale Raad voor Strafrechtstoepassing) on 28
May and 25 June 1991. The applicant appeared before the Board on the
former and his lawyer on the latter date. In its decision of 3
September 1991, the Board rejected the applicant's appeal but declared
the Prison Director's appeal well-founded, annulled part of the
decision of the Complaints Board and declared the applicant's appeal
against the Prison Director's decision in its entirety unfounded. The
Appeals Board considered that the Prison Director's decision was
justified under Section 24 para. 3 (b) of the Prison Ordinance
(Gevangenismaatregel), which provides that separation can be ordered
when a prisoner, pending his transferral, cannot, according to the
reasonable judgment of the Director, be kept under control, if he lives
together with other prisoners.
In a separate appeal of 18 December 1990, the applicant had
appealed against a ministerial decision to transfer him from Sittard
to a prison at Veenhuizen. That appeal was rejected by the Appeals
Board in a separate decision of 4 September 1991.
COMPLAINTS
1. The applicant complains of a violation of Article 6 para. 1 of
the Convention in that his appeal against the Prison Director's
decision of 12 December 1990 was not heard within a reasonable time.
He points out that the Complaints Board took its decision on 26 March
1991, i.e. about three and a half months after he had lodged his
appeal. In the meantime, he had been transferred to another prison in
a different part of the country where his family, who lived near
Sittard, had great difficulties in visiting him. As his tranferral to
another part of the country was a serious interference with his private
life, the appeal should have been heard much earlier than was actually
done.
2. The applicant complains of a further violation of Article 6 para.
1 of the Convention in that he did not get a fair hearing of his
appeal. In fact, it appears from the decision of the Complaints Board
and the Appeals Board that the Prison Director had based his decision
to separate the applicant from other prisoners on rumours, according
to which the applicant might be involved in the preparation of
subversive acts or of an attempt to escape from prison by means of
hostage-taking. However, he was never informed of these rumours and
therefore had no possibility to defend himself against them.
THE LAW
The applicant complains of violations of Article 6 para. 1
(Art. 6-1) of the Convention in that his appeal was not heard within
a reasonable time and in that he did not have a fair hearing, since he
could not defend himself against the rumours upon which the decision
to separate him from other prisoners was based.
Article 6 para. 1 (Art. 6-1) of the Convention provides that, in
the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by a court.
The question arises whether this provision is applicable in the
circumstances of the present case.
The Commission notes, in this respect, that the decision to
separate the applicant from other prisoners was not a sanction for any
offence which the applicant had committed during his imprisonment. It
follows that in the proceedings concerned the applicant was not charged
with a criminal offence within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
It is true that a person's placement during imprisonment and the
regime under which he serves his sentence may have certain
repercussions on his private life and on the opportunities he will have
of maintaining contact with his family. Nevertheless, the Commission
considers that the decisions which the prison administration takes on
such matters should be regarded as administrative decisions which do
not determine the prisoner's civil rights and obligations within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Consequently, Article 6 para. 1 (Art. 6-1) of the Convention is
not applicable to the circumstances of the present case, and the
application is to be rejected as being incompatible ratione materiae
with the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy