AS TO THE ADMISSIBILITY OF
Application No. 20314/92
by Franklin VELTHUIS
against Portugal
The European Commission of Human Rights sitting in private
on 5 April 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
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 10 April 1991
by Franklin VELTHUIS against Portugal and registered on
17 July 1992 under file No. 20314/92;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
2 June 1993 and the observations in reply submitted by the
applicant on 10 December 1993;
Having deliberated;
Decides as follows:
THE FACTS
Particular circumstances of the case
The applicant is a Dutch citizen, born in 1950, and at
present detained in Portugal.
The facts of the present case as submitted by the parties
may be summarised as follows.
On 31 May 1989 in Amsterdam the applicant received a
telephone call from a Portuguese acquaintance, J.M., who asked
him to come to Portugal as soon as possible. On 1 June 1989 the
applicant travelled to Portugal where he was arrested and
detained on arrival at Lisbon airport on suspicion of drug
trafficking. He was remanded in custody. A judicial decision of
2 June 1989 confirmed his detention on remand.
It then appeared that J.M. had already been arrested on 26
May 1989 and that he had collaborated with the police in
persuading the applicant to travel to Portugal where the police
intended to arrest him.
In accordance with Article 213 of the Code of Criminal
Procedure the conditions of the applicant's detention on remand
and its maintenance were regularly submitted to judicial control:
on 19 August 1989, 20 November 1989, 6 February 1990 and 3 May
1990.
The applicant did not appeal against the decisions by which
his detention on remand was maintained.
On 5 February 1990 the applicant lodged a 'habeas corpus'
appeal to the Supreme Court (Supremo Tribunal de Justiça). He
alleged that his detention on remand had become illegal since it
had exceeded a certain period.
On 14 February 1990 the Supreme Court declared the detention
on remand to be lawful and rejected the appeal.
After spending nearly 20 months (1 June 1989 - 28 January
1991) in detention on remand, the applicant was sentenced for
drug trafficking on 28 January 1991 by the District Court
(Tribunal de Circulo) of Portimao to eleven and a half years'
imprisonment and a fine of 3 million escudos. The court also
decided to expel him from the country for a period of 10 years.
In contrast, J.M. received a lenient sentence as a reward for
having collaborated with the police.
The applicant appealed to the Supreme Court which, on
14 November 1991, confirmed the judgment against him.
The applicant unsuccessfully complained to various
Portuguese authorities about the deceitful manner in which he had
been persuaded to travel to Portugal.
On 20 September 1991 the Netherlands Embassy in Lisbon
addressed a 'note verbale' to the Portuguese Ministry of Foreign
Affairs, in which the Embassy stated, inter alia:
"S'il devait s'avérer qu'en effet un
ressortissant néerlandais fut attiré comme
présenté ci-dessus afin de pouvoir l'arrêter au
Portugal, les autorités néerlandaises ne peuvent
y voir que manque de respect pour la souveraineté
des Pays-Bas.
Lesdites autorités sont de l'avis que dans ce cas
la situation d'avant juin 1989 devrait être
rétablie et que la coopération luso-néerlandaise
en ce qui concerne la lutte contre le trafic
international de drogues trouverait son compte à
ce que le procès contre le ressortissant
néerlandais mentionné fût transféré aux Pays-Bas,
si besoin en est après une demande
d'extradition."
The Portuguese Ministry of Foreign Affairs, in its reply,
denied that there had been any lack of respect for the
sovereignty of the Netherlands and further stated that a transfer
of the applicant to the Netherlands for the purpose of serving
his sentence could be considered after Portugal had ratified the
Council of Europe Convention on the subject.
Relevant domestic law
Provisions on detention on remand are contained in the Code
of Criminal Procedure (CCP).
A re-examination of such detention shall take place every
three months. The competent juge shall then decide whether the
detention shall be maintained or the detained person shall be
released (Article 213 para.1 CCP).
Article 215 of the CCP provides for a maximum length of
detention on remand.
The implementation and maintenance of detention measures may
be contested by means of an appeal lodged with the court of
appeal. Specific rules of procedure apply to this appeal: the
appeal is immediately and separately transmitted to the competent
court of appeal (Articles 406 para. 2 and 407 para. 1 c) CCP),
which is bound to rule on the case within a time-limit of 30 days
from the day it receives the relevant files (Articles 219 and 427
CCP).
Moreover, a person who considers himself to be a victim of
an unlawful arrest or detention on remand may lodge a 'habeas
corpus' appeal, provided that the conditions for this
extraordinary appeal, laid down in Article 220 a) and d)
CCP(arrest) or Article 222 para. 2 a) and c) CCP (detention), are
met.
Article 417 of the Criminal Code provides for sanctions
against officials who act contrary to the law when enforcing
measures of detention. Complaints of this kind must be lodged
with the public procecutor's office.
COMPLAINTS
The applicant claims that his arrest and detention were
illegal, because he was brought to Portugal by deceitful means
on the initiative of the Portuguese police. He invokes Article
5 para. 1 (a) and (c) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 April 1991 and
registered on 17 July 1992.
On 29 March 1993 the Commission decided to bring the
application to the notice of the respondent Government and to
invite them to submit written observations on its admissibility
and merits.
The Government's observations written in Portuguese were
submitted within the indicated time-limit on 2 June 1993.
Following an extension of the time-limit, the Government
submitted the French translation of their observations on 30
August 1993. The applicant's observations in reply were submitted
on 10 December 1993.
On 10 December 1993 the applicant was granted legal aid.
THE LAW
1. The applicant claims that his arrest and detention were
illegal because he was persuaded to travel to Portugal by
deceitful means on the initiative of the Portuguese police. He
invokes Article 5 para. 1 (a) and (c) (Art. 5-1-a, 5-1-c) of the
Convention, which read as follows:
" Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction
by a competent court ; ...
c) the lawful arrest or detention of a person effected
for the purpose of bringing him 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 ; ..."
The Commission finds that the applicant's complaint concerns
the alleged unlawfulness of his arrest and detention on remand
and, implicitly, the alleged unlawfulness of his detention after
his conviction. It will therefore examine each of these aspects
separately.
2. As to the applicant's arrest and detention on remand
The Government do not deny that the Portuguese police
collaborated with the applicant's acquaintance, J.M., in order
to persuade the applicant to go to Portugal so that they could
arrest him for suspected drug offences. They submit, however,
that the application is inadmissible for non-compliance with
Article 26 (Art. 26) of the Convention, both as regards
exhaustion of domestic remedies and the six months' rule.
The Government contend that the applicant did not challenge
his detention on remand before the Court of Appeal. Thus he
appealed neither against the judicial decision of 2 June 1989
confirming his detention on remand after his arrest, nor against
the subsequent decisions maintaining his detention on remand. The
Government also point out that if the applicant had considered
that his arrest was illegal he should have lodged a complaint
with the competent public procecutor's office in order to have
the officials concerned sanctioned.
The Government note that the applicant initially failed to
lodge a 'habeas corpus' appeal with the Supreme Court. This
extraordinary appeal enables the lawfulness of detention to be
verified. The Government acknowledge that later, on 5 February
1990, the applicant lodged such an appeal. However, in these
proceedings the applicant only alleged that his detention on
remand had become illegal since it had exceeded a certain period.
He did not claim that his arrest and detention on remand had been
unlawful. Therefore, the Government consider that the complaint
has not been raised in substance.
Additionally, the Government submit that, even assuming that
domestic remedies have been exhausted, the applicant did not
observe the six months' time-limit laid down in Article 26 (Art.
26) of the Convention, since the application was introduced on
10 April 1991 and the last domestic judicial decision concerning
this issue was taken on 3 May 1990 (the decision controlling and
maintaining the applicant's detention on remand).
The applicant submits that he experienced some practical
difficulties in having the alleged illegality of his arrest and
detention on remand examined by the Portuguese courts. He
unsuccessfully complained to various Portuguese authorities about
the deceitful manner in which he had been persuaded to travel to
Portugal.
The Commission recalls its constant case-law that exhaustion
of domestic remedies pursuant to Article 26 (Art. 26) of the
Convention requires an applicant "to make normal use of those
domestic remedies which are likely to be effective and adequate
to remedy the matters of which he complains" (No. 11471/85,
Crémieux v. France, Dec. 19.01.89, D.R. 59 p. 67, at p. 80). The
Commission also recalls that in order to exhaust domestic
remedies an applicant "must have raised before the national
authorities, at least in substance, the complaint he puts to the
Commission" (No. 11798/85, Castells v. Spain, Dec. 7.11.89, D.R.
63 p. 89).
As regards the facts of the present case, the Commission
accepts that the applicant may have experienced some practical
difficulties in having the alleged illegality of his arrest and
detention on remand examined by the Portuguese courts. However,
the Commission notes that the applicant did not lodge any
ordinary appeal against the decision to remand him in custody or
against the subsequent decisions maintaining his detention on
remand. Nor did he lodge an immediate 'habeas corpus' application
with the Supreme Court or a complaint with the public
prosecutor's office concerning the alleged unlawfulness of his
arrest and detention. The Commission further notes that, although
the applicant later lodged a 'habeas corpus' appeal with the
Supreme Court, he did not raise, at least in substance, before
that Court the issue which he puts before the Commission.
In these circumstances, the Commission concludes that the
applicant did not exhaust domestic remedies in respect of his
complaint
that his arrest and detention were allegedly unlawful because of
the deceit used in bringing him to Portugal. It follows that this
part of the application must be rejected pursuant to Articles 26
and 27 para. 3 (Art. 26, 27-3) of the Convention.
3. As to the lawfulness of the applicant's detention after his
conviction
The Commission considers that implicit in the applicant's
complaint about the deceit employed in his case is an allegation
that his detention after conviction was also unlawful. However,
apparently the applicant did not base his appeal to the Supreme
Court against conviction and sentence on the allegedly illegal
manner in which he was persuaded to travel to Portugal in order
to be arrested. Nevertheless, even assuming that the applicant
raised this matter, at least in substance, in his appeal, the
Commission cannot find that the circumstances in which the
applicant went to Portugal could make his subsequent detention
after conviction and sentence unlawful.
The Commission therefore finds that this part of the
application 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 Commission President of the
Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy