AS TO THE ADMISSIBILITY OF
Application No. 13147/87
by Peter William ROBERTS
against the Netherlands
The European Commission of Human Rights sitting in private
on 7 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 June 1987
by Peter William ROBERTS against the Netherlands and registered
on 19 August 1987 under file No. 13147/87;
Having regard
- to the report provided for in Rule 47 of the Rules of
Procedure of the Commission;
- to observations submitted by the respondent Government on
19 May 1989 and the letter submitted by the applicant on
9 April 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen, born in 1935,
normally resident in Alvaston, Derby, and currently detained in Breda,
the Netherlands.
The facts, as submitted by the parties, may be summarised as
follows:
On 23 February 1987 the applicant was arrested and charged
with a drugs offence. He was detained in a police station.
On 27 February 1987, the applicant appeared with counsel
before the Examining Magistrate (rechter-commissaris) in Rotterdam in
connection with an application by the prosecution for his remand in
custody. At the conclusion of the hearing, the Examining Magistrate
remanded the applicant in custody and informed the applicant that
restrictions on his correspondence were to be imposed. In accordance
with established practice, the order imposing the restrictions was
served on the applicant.
On 4 March 1987, the applicant appeared with counsel and
interpreter before the Examining Magistrate in connection with an
application for an extension of his remand in custody. The application
was granted and the applicant was again informed that the restrictions
would remain in force.
The applicant did not oppose the imposition of restrictions by
lodging an objection against the order.
On 6 March 1987 the applicant wrote to his wife, explaining to
her what had happened.
It appears that some days later the applicant was sent to a
prison in Breda.
By letter of 19 May 1987, which reached the applicant on
20 May 1987, the Examining Magistrate with the District Court
(Arrondissementsrechtbank) of Rotterdam informed the applicant that
she had not forwarded his letter of 6 March 1987 because she was of
the opinion that sending it might obstruct the investigation. She
returned the letter of 6 March 1987 to the applicant.
On 20 July 1987, the Examining Magistrate lifted the
restrictions.
On 2 September 1987, the applicant was convicted by the
Rotterdam District Court for an offence under the Opium Act and
sentenced to 15 months' imprisonment. His appeal was dismissed by the
Hague Court of Appeal (Gerechtshof) on 29 March 1988 and by the
Supreme Court (Hoge Raad) on 7 February 1989.
RELEVANT DOMESTIC LAW AND PRACTICE
In the interests of the investigation, the Examining
Magistrate may order measures to be taken in respect of a suspect
during a preliminary judicial examination. The imposition of such
measures is based on Section 225 para. 1 of the Act promulgating the
Code of Criminal Procedure of 29 June 1925 (Wet van 29 juni 1925, Stb.
308 tot invoering van het nieuwe Wetboek van Strafvordering) in
conjunction with Article 132 of the Prison Rules, which permit the
Examining Magistrate to restrict a suspect's correspondence or the
visits he may receive. When processing an application for remand in
custody, the Examining Magistrate generally informs the suspect
whether the application is being granted, whether restrictions are
being imposed and what these comprise. If the suspect does not agree
with them, he may lodge an objection with the District Court pursuant
to Section 225 para. 3 of the Act promulgating the Code of Criminal
Procedure.
COMPLAINTS
The applicant complains of the stopping of his letter of
6 March 1987 to his wife and that it took more than ten weeks before
he was informed that it had not been forwarded. He submits that he
should have been informed immediately and asked to rewrite the letter.
He furthermore submits that his wife was very worried at not hearing
from him. The applicant invokes Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 June 1987 and registered
on 19 August 1987.
On 6 March 1989, the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits.
The observations of the respondent Government were submitted
on 19 May 1989.
The applicant was granted legal aid by the Commission on
16 February 1990.
On 5 February 1990 the applicant's legal representative
applied for an extension in the time-limit fixed for the submission
of observations in reply to those of the Government. The time-limit
was extended until 15 February 1990.
By letter of 15 February 1990, the applicant's legal
representative stated that she was unable to submit any observations
in reply since the applicant's former lawyer in the proceedings in the
Netherlands had failed to respond to her request for information. By
telefax of 9 April 1990, the applicant's legal representative sent to
the Commission a letter from the applicant's former lawyer in the
Netherlands, which confirmed that there had been no objection lodged
in respect of the restrictions imposed on the applicant's
correspondence.
THE LAW
The applicant has complained that his letter to his wife was
stopped and that he was not informed of this for more than ten weeks.
He invokes Article 8 (Art. 8) of the Convention, which provides:
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 in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others.
The Government submit that the applicant failed to object to
the restrictions on his correspondence and therefore failed to exhaust
his domestic remedies.
After examination of the facts as submitted by the parties,
the Commission finds that it is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of the above provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
In the present case the applicant failed to object to the
imposition of restrictions under paragraph 3 of section 225 of the Act
promulgating the Code of Criminal Procedure and has, therefore, not
exhausted the remedies available to him under Dutch law. Moreover, an
examination of the case as it has been submitted does not disclose the
existence of any special circumstances which might have absolved the
applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at his
disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and his
application must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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