AS TO THE ADMISSIBILITY
The European Commission of Human Rights sitting in private on
2 December 1986, the following members being present:
MM. C. A. NØRGAARD
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 November 1986 by
G.K. and B.J.F. against the Netherlands and registered on 20 November
1986 under file No. 12543/86;
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 facts of the case as they have been submitted by the applicants
may be summarised as follows.
The first applicant was born on 5 April 1953 at Belfast, Northern
Ireland. At the time of lodging the application he was detained at a
prison in Amsterdam, the Netherlands.
The second applicant was born on 9 October 1951 at Belfast. When
lodging the application he was detained at a prison in Maastricht, the
Netherlands.
In the proceedings before the Commission, the applicants are
represented by Mr. W.J. van Bennekom, a lawyer practising at
Amsterdam.
It appears that both applicants are members of the Irish Republican
Army (IRA). On 8 March 1972, the first applicant received two life
sentences and a prison sentence of twenty years, having been convicted
of several bombings, by a United Kingdom court.
The second applicant received a life sentence, as well as prison
sentences of fourteen and seven years, on 13 August 1975, having been
convicted of several bombings and homicide, by a United Kingdom court.
It further appears that the applicants, together with other prisoners,
escaped from the Maze Prison at Belfast on 25 September 1983.
On 16 January 1986 the applicants were arrested by the Amsterdam
police at the request of the British authorities, who subsequently, on
3 February 1986, demanded the applicants' extradition for the
execution of the applicants' prison sentences and for the prosecution
of several criminal offences committed during their escape from the
Maze Prison.
On 25 March 1986 the Regional Court (Arondissementsrechtbank) of
Amsterdam authorised the second applicant's extradition exclusively
for the execution of his life sentence but refused to authorise the
first applicant's extradition. In its advice to the Minister of
Justice the Regional Court drew the Minister's attention to the fact
that the second applicant feared he would be subjected to inhuman and
degrading treatment when returned to Northern Ireland, especially
because of acts of revenge by the prison guards. The Minister was
asked to bring this to the attention of the British authorities.
Both the second applicant and the Public Prosecutor appealed against
the decision of the Regional Court.
On 1 July 1986, the Supreme Court (Hoge Raad) rejected the appeal by
the second applicant but quashed the decision of the Regional Court
insofar as the first applicant's extradition had not been authorised
and insofar as the second applicant's extradition had not been
authorised on certain points. After a hearing on 10 September 1986,
the Supreme Court, on 21 October 1986, authorised the applicants'
extradition for certain offences the applicants allegedly committed
during their escape from prison on 25 September 1983. The extradition
was not authorised on any other ground.
Consequently, the first applicant's extradition was exclusively
authorised for the prosecution of certain offences he allegedly
committed during his escape from the Maze Prison. The second
applicant's extradition was authorised both for the further execution
of his life sentence (since this part of the decision by the Regional
Court of Amsterdam was upheld by the Supreme Court) and for the
prosecution of certain offences he allegedly committed during his
escape from the Maze Prison.
With regard to the applicants' allegations that they would be
subjected to inhuman and degrading treatment contrary to Article 3
(art. 3) of the Convention and that they would have no fair hearing as
guaranteed by Article 6 (art. 6) of the Convention, the Supreme Court
noted that the United Kingdom was a Party to the Convention and had
made a declaration under Article 25 (art. 25) of the Convention.
Consequently, Dutch courts were not at liberty to decide on these
complaints.
By letters of 21 October 1986, the President of the Supreme Court
informed the Minister of Justice that the Supreme Court shared the
applicants' concern that they would be subjected to a very harsh
treatment when returned to Northern Ireland. The President therefore
suggested that the Minister would approach his British counterpart in
order that measures be taken to avert this danger.
On 13 November 1986, the Deputy Minister of Justice decided to
authorise the extradition of both applicants for the prosecution of
certain offences committed during their escape and also for the
further execution of the second applicant's life sentence. In both
decisions the Deputy Minister had regard to information submitted by
the Northern Ireland Prison Department to the effect that after the
applicants' return to Northern Ireland they would have to be kept in
Maze Prison, it being the only high security prison in Northern
Ireland, where they would be treated in the same manner as all other
prisoners and where they would have the same rights as other prisoners
to complain about prison treatment. It was also stated that the
experience of other prisoners who had escaped in September 1983 and
had then been recaptured gave no reason to believe that the applicants
would be at risk as a result of action either by staff or by other
prisoners. The Deputy Minister also referred to the following
statement by the Deputy Director of H.M. Prison Maze: "should [the
applicants] be returned to the custody of the Northern Ireland Prison
authorities, they would have no reason to fear that they would be
subjected to any assault, ill-treatment or irregular practice at the
hand of any prison officer" and that "they would have all the same
rights and receive the same treatment as other prisoners".
COMPLAINTS
The applicants complain that the Dutch authorities, by extraditing
them to the United Kingdom, violate Articles 3 (art. 3) and 6 para. 1
(art. 6-1) of the Convention. They claim that they will be subjected
to inhuman and degrading treatment by prison guards as well as by
other prisoners and that they will not have a fair trial by an
independent and impartial tribunal.
With regard to their complaints under Article 3 (art. 3) of the
Convention, the applicants submit that many authoritative persons and
organisations, including the Dutch section of the International
Commission of Jurists, the "Fédération Internationale des Droits de
l'Homme", the "Association Internationale des Juristes Démocrates",
and the "Haldane Society", have addressed themselves to the Dutch
Deputy Minister of Justice, requesting her not to extradite the
applicants.
The applicants also refer to the opinion of the Supreme Court, as
expressed in its letter to the Minister of Justice. They claim that
they will not only be ill-treated in prison but that there is also a
conspiracy to kill them because of their part in the escape from the
Maze Prison. In this respect they refer to a letter of
5 February 1986 of a Republican prisoner, who was also involved in the
escape of 25 September 1983.
With respect to their complaints under Article 6 para. 1 (art. 6-1) of
the Convention, the applicants claim that the so-called
"Diplock-courts" which would decide on the charges brought against
them do not meet the requirements of that provision.
THE LAW
1. The applicants have complained that the Dutch authorities,
when extraditing them to the United Kingdom, would violate their
rights under Article 3 (art. 3) of the Convention which provides:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that extradition is not as such among the
matters covered by the Convention (cf. e.g. No. 7256/75,
Dec. 10.12.1976, DR 8, p. 161).
However, the Commission has recognised in its previous case-law that a
person's extradition may, exceptionally, give rise to issues under
Article 3 (art. 3) of the Convention where extradition is contemplated
to a country in which "due to the very nature of the regime of that
country or to a particular situation in that country, basic human
rights, such as are guaranteed by the Convention, might be either
grossly violated or entirely suppressed" (No. 1802/62, Dec. 26.3.1963,
Yearbook 6 p. 462 at 480). The Commission has further recognised
that:
"although extradition and the right of asylum are not, as such, among
the matters governed by the Convention ... the Contracting States have
nevertheless accepted to restrict the free exercise of their powers
under general and international law, including the power to control
the entry and exit of aliens, to the extent and within the limits of
the obligations which they have assumed under the Convention"
(No. 2143/64, Dec. 30.6.1964, Yearbook 7 p. 314 at 328).
If conditions in a country are such that the risk of serious treatment
and the severity of that treatment fall within the scope of Article 3
(art. 3) of the Convention, a decision to deport, extradite or expel
an individual to face such conditions incurs the responsability under
Article 1 of the Convention of the Contracting State which so decides
(cf. No. 10308/83, Dec. 3.5.1983, DR 36, p. 209 at 231).
The applicants have alleged that they will be subjected to inhuman and
degrading treatment by prison guards and other prisoners when returned
to Northern Ireland. In support of these allegations they have
submitted a letter from a prisoner at the Maze Prison, who was also
involved in the escape of 25 September 1983.
The Commission notes that the British authorities informed the Dutch
Minister of Justice that the applicants, should they be returned to
the custody of the Northern Ireland prison authorities, would have to
be held in the Maze Prison as it is the only high security prison in
Northern Ireland.
However, the Commission also notes that the British authorities
informed the Dutch Minister of Justice that the experience with other
recaptured prisoners at the Maze Prison gave no reason to believe that
the applicants would be at risk as a result of action either by staff
or by other prisoners. In addition, the Commission has had regard to
the statement by the Deputy Director of the Maze Prison.
In view of this information, and in the absence of any corroborating
evidence to the letter submitted by the applicants, the Commission
finds that it has not been demonstrated that the applicants' alleged
treatment and punishment would attain the necessary degree of
seriousness so as to fall within the scope of Article 3 (art. 3) of
the Convention.
In addition, the Commission attaches importance to the fact that the
case concerns extradition to a High Contracting Party to the European
Convention on Human Rights, which has recognised the right of
individual petition as set forth in Article 25 (art. 25) of the
Convention.
Under these circumstances, the Commission finds that Article 3
(art. 3) of the Convention does not prevent the Netherlands from
extraditing the applicants to the United Kingdom.
Consequently, this part of the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(art. 27-2) of the Convention.
2. The applicants have also complained that they will not have a
fair trial upon extradition to the United Kingdom and they have
invoked Article 6 para. 1 (art. 6-1) of the Convention in this respect
which provides, inter alia:
"In the determination of ... any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal ..."
However, the Commission finds that, as far as Article 6 (art. 6) of
the Convention is concerned, the United Kingdom Government are
exclusively responsible under the Convention for the applicants' trial
in the United Kingdom and that the extradition can in no way engage
the responsibility of the Netherlands Government under Article 6
(art. 6) of the Convention.
The Commission leaves it open whether in exceptional circumstances the
extradition of a person for the purpose of prosecution before a court
lacking even the most fundamental legal guarantees could raise a
problem under Article 3 (art. 3) of the Convention, since no such
issue could arise in the present case.
It follows that this part of the application is incompatible with the
Convention ratione personae within the meaning of Article 27 para. 2
(art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)