AS TO THE ADMISSIBILITY OF
Application No. 21132/93
by Theodorus Albert Ivo PETERS
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 6 April 1994, the following members being
present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 16 December
1992 by Theodorus Albert Ivo PETERS against the Netherlands and
registered on 8 January 1993 under file No. 21132/93;
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
1. Particular circumstances of the case
The applicant is a Dutch citizen, born in 1966, and is at
present detained at 's-Hertogenbosch. Before the Commission he
is represented by Mrs. T.N.B.M. Spronken, a lawyer practising in
Maastricht.
The facts of the case, as submitted by the applicant, may
be summarised as follows.
The applicant is serving a six years' prison sentence for
drugs offences. On 21 November 1991, the authorities of the
remand centre "Overmaze" in Maastricht ordered the applicant to
give a sample of his urine in order to have it examined, since
his behaviour suggested that he had been using drugs. As the
applicant refused to co-operate, a disciplinary measure of five
days' confinement in his own cell was imposed on the same day.
The applicant filed a complaint with the Supervisory
Commission (Commissie van Toezicht) on 23 November 1991. He
complained that the obligation to undergo a urine test violated
his right to physical integrity, as protected by the Constitution
and Article 8 of the Convention and argued that the legal basis
for the restriction of this right was insufficient as the rules
relating to urine tests are set out in a Circular and not in an
Act. He further stated that in his case the Circular had not been
complied with, as the test in reality was not motivated by his
own conduct but formed part of a daily routine involving the at
random testing of detainees.
Following a hearing on 16 December 1991, at which the
applicant and his lawyer were present, the Supervisory Commission
rejected the complaint in its decision of 10 February 1992.
Noting that, according to the rules on compulsory urine tests in
prisons, a prison director can order a detainee to give urine in
order to have it examined for the presence of drugs, the
Supervisory Commission found that there was a sufficient legal
basis for the restriction of the applicant's constitutional right
to physical integrity, that there was no indication that the test
was not ordered in accordance with the applicable rules and that
the disciplinary measure imposed on the applicant for his refusal
to co-operate was not unreasonable.
On 5 March 1992 the applicant appealed to the Central Board
for the Application of Criminal Law (Centrale Raad voor Straf-
rechtstoepassing). In addition to his initial submissions before
the Supervisory Commission, he submitted a statement of another
detainee, who confirmed that urine tests are carried out daily
as part of a general programme of testing detainees at random.
The applicant further complained that the urine samples obtained
are not properly sealed so that it is easy to falsify them.
By decision of 19 June 1992 the Central Board for the
Application of Criminal Law rejected the applicant's appeal and
upheld the decision of the Supervisory Commission. In respect of
the complaint about the sealing of the urine samples, it held
that it could not deal with this complaint as the applicant had
refused to co-operate with the test.
2. Relevant domestic law
Section 22 of the Criminal Code (Wetboek van Strafrecht)
provides that the rules on discipline in remand centres and
prisons will be determined by Order in Council (Algemene
Maatregel van Bestuur). To this end, the Prison Rules (Gevangenis-
maatregel) have been adopted in 1953. Section 28a was inserted
in the Prison Rules in 1988. Under para. 1 of this provision a
director of a remand centre or prison can oblige a detainee, in
the interests of order, safety or the proper conduct of affairs
in the institution, to give urine in order to have it examined
for the presence of drugs. Para. 2 provides that the Minister of
Justice will set further rules on the taking and analysing of the
urine samples. These rules are contained in a Ministerial
Circular of 1 December 1988. Both the Prison Rules and the
Circular have been published.
COMPLAINTS
The applicant complains under Article 8 of the Convention
that the obligation to give urine to the prison authorities in
order to have it examined for the presence of drugs, constitutes
an interference with his right to respect for his private life
and that this interference is not justified under para. 2 of
Article 8, in particular since it cannot be regarded as being "in
accordance with the law". He submits that, in his case, the urine
test was not carried out in accordance with the Circular as it
was not motivated by his own conduct but formed part of a daily
programme involving the at random testing of detainees and that
the Circular of 1 December 1988 is too vague to satisfy the
requirements of the Convention.
The applicant further complains that the Circular offers
inadequate safeguards against abuse by the authorities in that
the authorities can impose a urine test without prior
authorisation of a court and in the absence of legal assistance
and that it is only possible to complain once a urine test has
been ordered, that the taking of urine is carried out in a
humiliating way as the urine has to be produced in the presence
of a supervisor, that the samples of urine obtained are not
properly sealed so that it is easy to falsify them and that the
Circular does not state whether the samples should be kept and
how a countercheck could be carried out.
THE LAW
1. In respect of the applicant's complaints that urine samples
taken in prison are not properly sealed and that there are no
rules as to whether or not these samples should be kept and how
a countercheck could be carried out, the Commission recalls that
it only examines the personal situation of the applicant and not
the general scope of the laws applied to him (cf. No.10491/83,
Dec. 3.12.86, D.R. 51 p. 41).
Insofar as these complaints have been raised in the domestic
proceedings, the Commission finds that, as the applicant in fact
has not given a sample of his urine to the prison authorities,
he cannot be considered a victim of a violation of the Convention
within the meaning of Article 25 (Art. 25) of the Convention in
respect of these complaints.
This part of the application is therefore incompatible
ratione personae with the provisions of the Convention and must
consequently be rejected under Article 27 para. 2 (Art. 27-2) of
the Convention.
2. The applicant complains under Article 8 (Art. 8) of the
Convention that his obligation to give urine to the prison
authorities in order to have it examined for the presence of
drugs, constitutes a humiliating interference with his right to
respect for his private life and that this interference is not
justified under para. 2 of Article 8 (Art. 8-2), in particular
since it cannot be regarded as being "in accordance with the
law", as the urine test was not motivated by his own conduct but
formed part of a daily programme involving the at random testing
of detainees. He further complains that the Circular of 1
December 1988 is too vague to satisfy the requirements of the
Convention and that the Circular offers inadequate safeguards
against abuse by the authorities
Article 8 (Art. 8) of the Convention, insofar as relevant,
reads:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society (...) for the prevention of
disorder or crime (...)."
The Commission observes that the applicant was ordered to
undergo a urine test and that a disciplinary sanction was imposed
on him, as he refused to comply with the order of the director
of the remand centre. To this extent he can claim to be a victim
of a violation of the Convention within the meaning of Article
25 (Art. 25) of the Convention.
As regards the way in which urine samples are allegedly
taken the Commission has also had regard to Article 3 (Art. 3)
of the Convention, which prohibits inhuman or degrading
treatment. It considers, however, that given the generally
accepted desirability to effectively control the use of drugs in
prisons, the treatment complained of, i.e. that a detainee has
to produce the urine in the presence of a supervisor, does not
attain the minimum level of severity required in order to fall
within the scope of this provision.
In respect of Article 8 (Art. 8) of the Convention the
Commission recalls that a compulsory medical intervention, even
if it is of minor importance, must be considered an interference
with the right to respect for private life (cf. No. 8239/78, Dec.
4.12.1978, D.R. 16 p. 184; No. 8278/78, Dec. 13.12.1979, D.R. 18
p. 154 and No. 10435/83, Dec. 10.12.1984, D.R. 40 p. 251). It,
therefore, considers that the obligation to undergo a urine test
constitutes an interference with the applicant's right to respect
for his private life within the meaning of Article 8 para. 1
(Art. 8-1) of the Convention.
The question thus arises whether this interference was
justified under para. 2 of Article 8 (Art. 8-2) of the
Convention.
The Commission notes that the interference complained of was
based on Section 28a of the Prison Rules and the Circular of 1
December 1988, which contain the rules on the taking of urine
from detainees in order to examine it for the presence of drugs.
The Commission notes that in the national proceedings the
applicant has not raised his complaints that the Circular of 1
December 1988 is too vague to satisfy the requirements of the
Convention and that the Circular offers inadequate safeguards
against abuse by the authorities.
Recalling that to exhaust domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention the person
concerned must have raised before the national authorities, at
least in substance, the complaint he puts before the Commission
(cf. No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63), the Commission
finds that it is therefore not competent to deal with this aspect
of the applicant's complaint.
The Commission notes that both the Supervisory Commission
and the Central Board for the Application of Criminal Law
considered that the director's order in the present case was in
accordance with the applicable rules.
The Commission recalls that it is primarily the task of
national authorities to apply and interpret domestic law, but
that the Convention organs have a limited jurisdiction to control
the manner in which it is done (cf. No. 10689/83, Dec. 14.5.84,
D.R. 37 p. 225). The Commission does not consider the findings
by the national authorities in the present case to be arbitrary
or unreasonable. The Commission, therefore, accepts that the
interference at issue was "in accordance with the law" within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
As to the "necessity" of the interference at issue, the
Commission finds that the "necessity" for interference with the
exercise of the right of a convicted prisoner to respect for his
private life must be appreciated having regard to the ordinary
and reasonable requirements of imprisonment. The "prevention of
disorder or crime", for example, may justify wider measures of
interference in the case of such a prisoner than in that of a
person at liberty (cf. No. 8317/78, Dec. 15.5.1980, D.R. 20 p.
44 at p. 91 and No. 9054/80, Dec. of 8.10.1982, D.R. 30, p. 113;
and, mutatis mutandis, Eur.Court H.R., Golder judgment of
21.2.1975, Series A no. 18, p. 21, para. 45).
The Commission is satisfied that the interference complained
of can reasonably be considered necessary in a democratic society
for the prevention of disorder or crime and thus as justified
under Article 8 para. 2 (Art. 8-2) of the Convention.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second
Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy