AS TO THE ADMISSIBILITY OF
Application No. 10447/83
by S.D.
against the Netherlands
The European Commission of Human Rights sitting in private
on 14 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 24 June 1983
by S.D. against the Netherlands and registered
on 27 June 1983 under file N° 10447/83 ;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission ;
Having regard to the Commission's decision of 9 July 1983 to
request information from the Netherlands Government in accordance with
Rule 42 para. 2 (a) of its Rules of Procedure ;
Having regard to the information supplied by the Dutch
Government on 22 July 1983 ;
Having regard to the applicant's reply received on 25 August
1983 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Belgian citizen, was born in 1938. In the
proceedings before the Commission he is represented by Mr. A.R.W.
Schaink, a lawyer practising in Amsterdam.
On 28 March 1961, the Indictment Chamber of the Ghent Court of
Appeal, having established that the applicant had committed two
homicides, one murder and one attempt of murder and a series of
qualified thefts, directed that he be confined to a special
institution on the basis of the Act of Social Protection in respect of
Mental Defectives and Habitual Offenders.
The applicant's confinement on the basis of the above decision
has lasted until 7 July 1982, date of his escape, the Mental Health
Review Board, competent under the above Act to decide on the release
of persons confined under the Act, not having found that the applicant
fulfilled the conditions set by the law for release. The above
matter was subject to an application directed against Belgium
(No. 10448/83), declared admissible by the Commission on 12 July 1984,
and in respect of which the Commission adopted its Report under
Article 31 of the Convention on 14 May 1987.
The applicant was arrested at the request of the Belgium
authorities on 9 July 1982 in Oostburg, Netherlands and placed in
detention.
On 14 July 1982 the Belgian Government requested the
applicant's extradition on the basis of the Benelux Treaty on
Extradition and Mutual Assistance.
The Regional Court of Middelburg authorised the extradition on
8 October 1982. A plea of nullity introduced against this decision
was rejected by the Supreme Court of the Netherlands on 12 April 1983.
In forwarding its decision to the Minister of Justice in
accordance with Article 30 para. 2 of the Extradition Act, the
Regional Court of Middelburg drew the Minister's attention to the
particular harsh aspects of this extradition.
The President of the Supreme Court, by letter of 12 April
1983, also drew the attention of the Minister to letters which the
applicant, his counsel and third persons had addressed to him in which
they had invoked Article 10 para. 2 of the Extradition Act which
enabled the Minister of Justice to refuse an extradition if the
consequences of the extradition would be particularly harsh in view,
inter alia, of the bad health conditions of the person concerned.
The Minister of Justice then ordered a psychiatric examination
of the applicant. A psychiatrist drew up a report on 3 December
1982. He concluded that the applicant was not mentally ill and that
he did not constitute a danger for society. He considered that the
applicant's extradition to Belgium would mean "the end of his
existence". If the applicant were to remain in the Netherlands, he
would require expert assistance for his rehabilitation, adapted to his
long period of detention.
The Minister of Justice forwarded by letter of 25 April 1983
the applicant's pleas and the above psychiatric report to the Belgian
Minister of Justice with the request to inform the Netherlands
authorities as regards prospects for the applicant's future following
his extradition.
By letter of 26 May 1983, the Belgian Minister of Justice
answered that he could not provide this information, since the review
of the confinement ordered in respect of the applicant fell
exclusively within the competence of the Mental Health Review Board
and that the possibility of any change could only be examined if the
requested person were surrendered to the Belgian authorities.
In the light of the above answer, the Dutch Minister of
Justice decided to forward his letter as well as the psychiatric
report to the competent Mental Health Review Board, so that their
contents could be taken into account in future decisions as regards
the applicant's continued detention.
On this basis the Dutch Minister of Justice granted the
extradition of the applicant on 22 June 1983.
On 24 June 1983 the Regional Court of Middelburg, called upon
to decide every 30 days on the prolongation of the applicant's
detention with a view to his extradition, decided to suspend,
conditionally, the applicant's detention and to order his immediate
release. The Court considered in particular that the applicant's
intention to introduce an application with the European Commission of
Human Rights against Belgium and the Netherlands implied that the
Netherlands must abstain from taking measures which could jeopardise
this right of petition. Although the outcome of these proceedings
could not be anticipated, the applicant's continued detention in the
course of these proceedings, according to the Court, required
substantial justification. As regards the danger of absconding, the
Court held that even if this risk was real, the applicant could be
released on condition that he declared himself to the local
authorities.
The applicant was released on condition that he would not
jeopardise the execution of the order to detain him with a view to his
extradition, should the suspension be revoked, that he reported once a
week to the local police and that he did not indulge in criminal
activities.
As the above decision concerned only the applicant's detention
but did not affect the power of the State to extradite the applicant,
he brought on 20 June 1983 injunction proceedings against the State to
prohibit the extradition (a) pending the proceedings before the
Commission under Article 25 of the Convention and (b) pending efforts
by the Minister of Justice through diplomatic channels to make the
Belgian authorities withdraw the extradition request and to reach a
settlement.
On 14 July 1983, the President of the Regional Court in the
Hague rejected both requests.
The applicant appealed from this decision to the Court of
Appeal in the Hague. Since the appeal had no suspensive effect the
applicant went immediately into hiding.
As the applicant no longer complied with his duty to report
weekly to the local authorities, the public prosecutor of Middelburg
introduced a request with the Regional Court of Middelburg to quash the
decision to suspend the applicant's detention. This request was
acceded to on 18 August 1983.
On 20 October 1983, the Court of Appeal in the Hague confirmed
the decision of the Regional Court of the Hague of 14 July 1983.
The Court of Appeal distinguished between the formal aspect and
material aspect of an application to the Commission. On the first
point, the Court of Appeal observed, inter alia, that Belgium had also
accepted the right of individual petition and that the applicant's
extradition to Belgium would therefore not constitute an impediment to
the exercise of the right of individual petition. The suspension of
the extradition was not required by the Convention itself but could
follow from an application of Rule 36 of the Commission's Rules of
Procedure, which in the present case had however not been applied by
the Commission.
As regards the material aspect of the application to the
Commission, the Court of Appeal considered that the applicant had
failed to substantiate his claim that he would be subject to treatment
contrary to Article 3 of the Convention in Belgium if extradited, and
that, therefore, no joint responsibility of the Netherlands for this
alleged breach could be established. The fact that certain privileges
granted to him in Belgium would probably be withdrawn on the ground
that he had misused them, did not warrant the conclusion that he would
be subject to treatment contrary to Article 3 of the Convention.
The applicant, whose whereabouts were unknown since he went
into hiding in July 1983, was arrested in the Netherlands on 23 July
1986 on charges of robbery. On 23 September 1986 he was convicted and
sentenced by the Regional Court of Almelo to 9 years' imprisonment.
The appeal against the sentence is still pending.
COMPLAINTS
The applicant is of the opinion that the Dutch authorities
will act in breach of Article 3 of the Convention by extraditing him
to Belgium, where he will be subjected to treatment contrary to the
Convention. Alternatively, the applicant submits that the Netherlands
share with Belgium the responsability for the breaches committed in
Belgium.
He is of the opinion that the Dutch authorities should
have refused the request for extradition for humanitarian reasons.
Reference is made in this respect to the psychiatric report where the
psychiatrist points to the possible effects on the applicant of an
extradition to Belgium. It is not sufficient for the Dutch
authorities to rely on the absence of a humanitarian clause in the
Benelux Extradition Treaty, because it is implicit. It has moreover
become common practice for the two States concerned to come to an
agreement in cases of this kind. Reference is made in this respect to
the facts at issue in Applications Nos. 9058/80 and No. 9144/80
(Leenart v. the Netherlands and Leenart v. Belgium).
It is therefore not acceptable that the Dutch authorities in
the present case chose not to seek a negotiated solution. This, in
his view, emphasises the inhuman character of the treatment of the
applicant by the Dutch authorities.
Alternatively, the applicant is of the opinion that the Dutch
authorities act in breach of Article 3 of the Convention, by not
suspending the extradition to Belgium until the proceedings regarding
Application No. 10448/83 (Dhoest v. Belgium) are terminated. The
acceptance of the right of individual petition implies in his view
that the authorities have a duty not to prevent an effective exercise
of that right, which means in the present case that the Dutch
authorities must suspend the extradition or, at least, not execute the
decision in an irrevocable manner.
PROCEEDINGS BEFORE THE COMMISSION
The application, accompanied by a request for application of
Rules 36 and 41 of the Commission's Rules of Procedure, was introduced
on 24 June 1983 and registered on 27 June 1983.
On 27 June 1983 the President of the Commission decided that
the application was not of such a nature as to warrant the application
of Rule 36. The applicant's representative was informed accordingly
on 28 June 1983. He was also informed that the Secretary of the
Commission had not thought fit to inform the High Contracting Party
concerned of the introduction of the application under Rule 41.
On 9 July 1983 the Commission proceeded to a first examination
of the application and decided in accordance with Rule 42 para. 2 (a)
of its Rules of Procedure to invite the Government of the Netherlands
to enlighten the Commission as regards their intentions in respect of
the applicant (1).
On 22 July 1983, the Dutch Government informed the Commission
that, after the decision of the President of the Regional Court of the
Hague, there was no legal obstacle to prevent the extradition. As the
applicant's whereabouts were unknown, a search order had been issued
by the public prosecutor's department. As soon as the applicant would
be localised, it was the intention of the Dutch authorities to comply
with their treaty obligations derived from the Benelux Extradition
Treaty.
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(1) At the same time it decided to invite the Government of
Belgium to submit their observations in reply on the
admissibility and merits of Application No. 10448/83.
Applicant's counsel replied on 25 August 1983. He argued that
the applicant had challenged the decision of the President of the
Regional Court of the Hague and that the Dutch authorities had the
duty to await the outcome of these proceedings. Such a course of
action would moreover be consistent with the attitude adopted by the
authorities in the injunction proceedings according to which the
Commission lacked competence to examine the complaint on the grounds
that national remedies had not yet been exhausted.
The obligation to extradite which the Government prayed in aid
was moreover not a very strict one. This followed from the facts in
the case of Leenart v. the Netherlands (No. 9058/80, cf. above), where
11 months had elapsed between the decision to extradite and the stay
in the execution of that decision ordered pending the proceedings
before the Convention organs.
The Commission reexamined the present application on 12 July
1984 and decided to adjourn its further examination pending the
outcome of the proceedings concerning Application No. 10448/83.
The Commission's proceedings concerning Application No.
10448/83 were terminated with the adoption of a report drawn up under
Article 31 of the Convention on 14 May 1987.
THE LAW
The applicant has complained of the decision of the Dutch
Government to extradite him to Belgium. He considers that the Dutch
authorities, in granting the request for extradition, act in breach of
Article 3 (Art. 3) of the Convention on the ground that they engender
a breach by Belgium of that provision of the Convention, in view of
the alleged inhuman character of the detention which is likely to
continue, or, alternatively, that they are jointly, with Belgium,
responsible for this alleged breach.
The Commission first recalls that extradition is not, as such,
among the matters covered by the Convention (cf. e.g. No. 7256/75,
Dec. 10.12.1976, D.R. 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 p. 480). The Commission is of the
opinion that these exceptional circumstances do not arise in the
present case.
In this respect, 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. The Commission further notes that the applicant has
effectively availed himself of this right, by introducing an
application against Belgium.
Under these circumstances, the Commission finds that Article 3
(Art. 3) of the Convention does not prevent the Netherlands from extraditing
the applicant to Belgium.
Consequently, the application must be rejected as being manifestly
ill-founded 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)