AS TO THE ADMISSIBILITY OF
Application No. 19046/91
by Y.E.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 October 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 22 February 1991
by Y.E. against the Netherlands and registered on 7 November 1991 under
file No. 19046/91;
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 Turkish citizen, born in 1965 and residing at
Breda, the Netherlands. He is represented before the Commission by Mr.
A. Goedkoop, a lawyer practising at Breda, the Netherlands.
The facts as presented by the parties may be summarised as
follows.
On 11 August 1990, the applicant was arrested at Breda as
suspected of attempted homicide. On the same day, he was provisionally
detained (inverzekeringstelling). On 14 August 1990, the Public
Prosecutor made a request for his continued provisional detention
(bewaring). However, on the same day the Investigating Judge rejected
this request, and the applicant was immediately released.
Against the decision of the Investigating Judge, the Public
Prosecutor appealed to the Regional Court (Arrondissementsrechtbank)
of Breda, which on 28 August 1990 annulled the decision of the
Investigating Judge and issued a detention order (bevel tot bewaring)
valid for a period of six days. In his application the applicant
states that he was arrested the same day, whereas the Government state
that the arrest took place on 29 August 1990 at 17.22 hours. In
confirmation hereof, the Government have submitted an official report
by the two police officers who effected the arrest.
On 3 September 1990, the Investigating Judge, at the request of
the Public Prosecutor, decided to prolong the applicant's detention for
another six days.
On 4 September 1990, the Regional Court ordered the applicant's
detention on remand (gevangenhouding) for a period of 30 days.
Against the Regional Court's decision of 4 September 1990, the
applicant appealed to the Court of Appeal (Gerechtshof) of
's-Hertogenbosch. He states that he lodged the appeal on 5 September
1990, whereas, according to the Government, the date was 6 September
1990.
On 5 October 1990, the Court of Appeal rejected the applicant's
appeal against the Regional Court's decision of 4 September 1990. On
9 October 1990, the Regional Court decided to prolong the applicant's
detention on remand for a further period of 30 days.
On a so-called "detention card" (preventievenkaart) submitted by
the applicant, the expiry dates of the above-mentioned three periods
of detention are indicated as being 4 September, 10 September and 10
October 1990.
The applicant states that the Regional Court decides once a week
on prolongations of detention on remand, which meant that in his case
a decision would normally have been taken on 2 October 1990, since, if
the matter was examined one week later, on 9 October 1990, the period
of 30 days would already have expired on 8 October 1990. However, on
2 October 1990 the Court of Appeal had not yet decided on the
applicant's appeal against the detention order of 4 September 1990, and
this was in the applicant's opinion the reason why the Regional Court
decided to postpone its decision regarding the prolongation of the
detention on remand until 9 October 1990.
COMPLAINTS
1. The applicant complains of violations of Article 5 para. 4 of the
Convention in that, on the one hand, the Court of Appeal did not decide
speedily on the applicant's appeal against the Regional Court's
decision of 4 September 1990 and, on the other hand, the Regional Court
postponed its decision of 2 October 1990 with the effect of depriving
the applicant of a judicial ruling before the expiry of his term of
detention.
2. Without referring to any specific provision of the Convention,
the applicant also complains that Dutch law does not indicate at what
time the execution of a provisional detention order (bevel tot
bewaring) begins. The relevant time could be the moment of the arrest
or the time when the arrested person is admitted into the House of
Detention, but in any case the relevant time should be indicated in the
documents. By not being precise on this point, Dutch law is, in the
applicant's opinion, not in conformity with the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 February 1991 and registered
on 7 November 1991.
On 1 April 1992 the Commission decided to invite the Netherlands
Government to submit their observations on the admissibility and merits
of the application.
The Government submitted their observations on 5 June 1992. The
applicant's observations in reply were submitted on 28 July 1992.
THE LAW
1. The applicant complains of violations of Article 5 para. 4
(Art. 5-4) of the Convention in that, on the one hand, the Court of
Appeal did not decide speedily on the applicant's appeal against the
Regional Court's decision of 4 September 1990 and, on the other hand,
the Regional Court postponed its decision on 2 October 1990 with the
effect of depriving the applicant of a judicial ruling before the
expiry of his term of detention.
Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:
"Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not
lawful."
The Commission considers that the second part of the applicant's
complaint also raises a question of the lawfulness of the applicant's
detention within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) of
the Convention, which reads as follows:
"1. 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:
...
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 question may be asked whether, when domestic law provides for
an appeal against a court's decision to detain a person on remand,
Article 5 para. 4 (Art. 5-4) requires that a decision on such an appeal
should be taken speedily. However, the Commission does not find it
necessary in the present case to determine this issue, since in any
event it cannot find that the requirement of speediness was violated
by the Court of Appeal which ruled on the applicant's appeal about four
weeks after the appeal had been lodged.
It follows that in this regard there is no appearance of a
violation of the Convention in the present case.
As regards the complaint that the decision of 9 October 1990 to
prolong the applicant's detention was taken after the expiry of the
previous period of detention, there is disagreement between the parties
as to when this period expired. The applicant has stated that it
expired on 8 October 1990, whereas the Government have indicated that
the correct date was 10 October 1990.
The Commission notes that, according to a document provided by
the Government, the applicant's arrest took place on 29 August 1990 at
17.22 hours. His detention was ordered first for two consecutive
periods of six days each and then for a period of 30 days. It follows
that the three periods expired on 4 September, 10 September and 10
October 1990 respectively. This calculation is further supported by
a "detention card" submitted by the applicant according to which the
period of detention for 30 days expired on 10 October 1990.
Consequently, the Commission finds that the prolongation of 9
October 1990 was ordered before the previous period had expired and
that the detention cannot be regarded as unlawful or otherwise in
violation of Article 5 (Art. 5) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that Dutch law does not indicate at
what time the execution of a provisional detention order begins and
that it is unclear whether the relevant time is the moment of the
arrest or the time when the arrested person is admitted into the House
of Detention. The applicant considers that the relevant time should
in any case be indicated in the documents.
The Commission notes that it cannot examine in the abstract
questions of the conformity of domestic law with the Convention. In
the present case, there is no indication that, due to any uncertainty
in the law, the applicant was kept in detention for a longer period
than could be justified by the various detention orders.
In these circumstances, the Commission considers this complaint
also to be 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
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy