AS TO THE ADMISSIBILITY OF
Application No. 19435/92
by Stephan ROELOFS
against the Netherlands
The European Commission of Human Rights (Second Chamber)
sitting in private on 1 July 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
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 20 January
1992 by Stephan ROELOFS against the Netherlands and registered
on 24 January 1992 under file No. 19435/92;
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 1968. When
introducing the application, he was detained in a prison at
Leeuwarden, the Netherlands. He is represented by Mr. G. de
Jonge, a lawyer at Maastricht.
The facts of the case as presented by the applicant may be
summarised as follows.
On 18 May 1990, the Director of the Amsterdam House of
Detention "Havenstraat" ordered that the applicant, who was then
detained on remand at this House of Detention, should be kept in
isolation because of information that he was planning to abscond
with the help of a firearm. The firearm was to be hidden in a
football which would be kicked over the walls of the House of
Detention.
The applicant lodged a complaint against the decision to the
Complaints Board (Beklagcommissie) of the Supervisory Commission
(Commissie van Toezicht) of the House of Detention. On 26
February 1991, the Complaints Board declared the complaint
unfounded.
Against this decision the applicant lodged an appeal with
the Appeals Board (Beroepscommissie) of the Prisons Section of
the Central Board for the Application of Penal Law (Sectie
Gevangeniswezen van de Centrale Raad voor Strafrechtstoepassing)
in The Hague. On 22 July 1991, the Board declared the appeal
unfounded.
As a result of the isolation order the applicant spent 28
days in isolation at Veenhuizen and 30 days in isolation at
Maastricht. After a short period at the House of Detention at
Utrecht, he was placed, by decision of the Deputy Minister of
Justice dated 23 July 1990, in a special security prison (extra
beveiligde inrichting). He was then submitted to the so-called
merry-go-round system (carrouselsysteem), under which detainees
spend periods of six months in one special security prison after
another.
In the appeal proceedings brought by the applicant he
insisted that the person who had told the story about the escape
plans with the help of a firearm in a football should be heard.
It had in fact appeared that the source was another detainee who
had told this story to a "group leader" who in his turn had
informed the Director of the House of Detention. However,
neither the Complaints Board nor the Appeals Board agreed to
interrogating the detainee concerned.
COMPLAINTS
The applicant complains of a violation of Article 6 of the
Convention in that the isolation as well as the application of
the merry-go-round system were based on hearsay evidence by an
anonymous person who was not heard during the proceedings. The
applicant refers in this context to the Kostovski case (Eur.
Court H.R., judgment of 20 November 1989).
The applicant further complains of a violation of Article
5 of the Convention in that the merry-go-round system had no
basis in law. Consequently his detention under that system was
unlawful and there would be no effective remedy in the
Netherlands which should be exhausted in this regard.
THE LAW
1. The applicant complains of a violation of Article 6
(Art. 6) of the Convention in that his isolation as well as the
application of the merry-go-round system were based on hearsay
evidence by an anonymous detainee. Article 6 para. 1 (Art. 6-1)
of the Convention reads, insofar as relevant, as follows:
"1. 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 an independent and
impartial tribunal established by law."
Moreover, Article 6 para. 3 (d) (Art. 6-3-d) of the
Convention provides that everyone charged with a criminal offence
shall have the right "to examine or have examined witnesses
against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses
against him".
The question therefore arises whether the decision to keep
the applicant in isolation and to subject him to the merry-go-
round system concerned the determination of his civil rights or
of a criminal charge against him.
In this respect the Commission first notes that the
applicant was at the relevant time detained. The decisions
complained of did not concern the question whether he should be
deprived of his liberty but merely the conditions under which his
further detention should be performed. The Commission considers
that the determination of the place and conditions of detention
are as a rule administrative matters which cannot be considered
to concern the determination of the detainee's civil rights.
There is no reason to make a different assessment in the present
case.
The Commission further notes that the detention regime
imposed by the decisions complained of was ordered as a security
measure and not as a sanction against the applicant for an
offence committed by him. The applicant was not charged with any
criminal or disciplinary offence, but the decisions were aimed
at eliminating a risk of the applicant absconding which was
considered to be serious. In these circumstances the Commission
considers that the proceedings did not concern the determination
of a criminal charge and that in these proceedings the applicant
was not charged with a criminal offence.
It follows that this part of the application is incompatible
with the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains of a violation of Article
5 (Art. 5) of the Convention in that the merry-go-round system
had no legal basis and in that his detention under that system
was therefore unlawful.
Article 5 para. 1 (Art. 5-1) of the Convention permits
deprivation of liberty in specific cases, for instance "after
conviction by a competent court" (para. 1 a) or "for the purpose
of bringing (a person) before the competent legal authority on
reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so" (para. 1 c). In both
those cases, it is further required that the detention shall be
"lawful".
It has not been alleged that the applicant's detention at
the relevant time was in itself unlawful. The only question is
whether the detention became unlawful if, as claimed by the
applicant, the specific conditions under which he was detained
did not have a basis in law.
The Commission considers, however, that insofar as Article
5 para. 1 (Art. 5-1) of the Convention requires that detention
shall be lawful, it refers to the legal basis for the deprivation
of a person's liberty. It does not refer to the detention regime
which to a large extent may be determined by the administrative
authorities, it being understood that the regime must always
comply with the requirements of Article 3 (Art. 3) of the
Convention.
It follows that in the present case the applicant's
complaint of a violation of Article 5 (Art. 5) of the Convention
is manifestly ill-founded 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 Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy