THE FACTS

Whereas the facts as presented by the Applicant may be summarised as

follows:

The Applicant is an American citizen, born in 1929 and seems to be at

present detained in prison in the USA.  He is represented before the

Commission by Mr. S, a lawyer practising in Amsterdam.

The original Application was lodged on 13th September 1963 and

concerned the Applicant's detention in the Netherlands. On 9th March

1964, certain additional complaints were lodged, relating to his

deportation from the Netherlands.

The Applicant was first arrested in Amsterdam in ... 1960 on suspicion

of illegal possession of narcotics.  In ... 1961, the District Court

(Arrondissementsrechtbank) in Amsterdam convicted him of this offence

and sentenced him to two years' imprisonment.

In ... 1960, the US Bureau of Narcotics informed the Netherlands

authorities that the Applicant was under suspicion of similar offenses

in the USA and that the American authorities were anxious to see him

return to the USA.

By letter of ... 1961, the US Embassy in The Hague informed the

Netherlands authorities that the Applicant was charged in the USA with

the smuggling of narcotics, other narcotics violations and passport

fraud and that the US authorities were anxious to secure his return to

the USA following his release from imprisonment in the Netherlands. The

US authorities did not intend, however, to demand his extradition since

the offenses with which the Applicant was charged in the USA did not

fall within the categories of offenses covered by the extradition

agreements in force. The Embassy stated that the Applicant's passport

had been restricted for return to the USA only and suggested that the

Netherlands Government might therefore wish to examine the possibility

of deporting the Applicant directly to the USA after his release. It

was further stated that the US Government would be pleased if such

action were possible and that funds for his passage to the USA would

probably be available.

After serving his sentence, the Applicant was detained, as from ..

November 1962, by the Dutch Aliens' Police.  He states that he was told

that he was being detained pending the decision of the authorities

whether he should be declared "an undesired alien".  He was detained

at a Rotterdam police station until ... December 1962 and subsequently

in a house of detention (Huis van Bewaring) in Rotterdam.

On .. February 1963 he was declared to be an "undesired alien" and he

states that he was then notified that he was being held in detention

pending his deportation from the Netherlands.

The Applicant then took two lines of action before the Netherlands

courts:

1. He submitted a petition to the District Court

(Arrondissementsrechtbank) in Rotterdam, alleging that his detention

was illegal and that, under Article 5, paragraph (4), of the

Convention, he was entitled to have the lawfulness of his detention

decided by a court.  He also invoked the Aliens Act of 1918 according

to which an "interned" alien was entitled to obtain a court decision

as to the lawfulness of the measure by which he was interned;  although

not being an interned alien within the meaning of that Act, he

considered that the provision referred to could be applied to his case

by way of analogy.

On .. June, 1963, the District Court dismissed his complaint, stating

that neither Article 5, paragraph (4), of the Convention nor any

domestic legal provision gave the Court competence to examine the

lawfulness of his detention.

He then lodged an appeal (beroep in cassatie) to the Supreme Court

(Hoge Raad) which, on 13th September 1963, declared the appeal

inadmissible. In its decision, the Supreme Court stated that the

Applicant's appeal had been lodged according to rules laid down in the

Code of Criminal Procedure;  that, however, the decision appealed

against did not concern a criminal matter and that, consequently, an

appeal submitted according to these rules could not be admitted;  that,

moreover, it was not necessary to decide whether an appeal had been

possible in the present case since the Applicant had, in any event, not

complied with the provisions in the Code of Civil Procedure when

lodging his appeal.

2. In regard to his deportation, the Applicant instituted proceedings

against the Minister of Justice and the Netherlands State before the

District Court (Arrondissementsrechtbank) in The Hague. He applied, in

particular, for a court order that he should not be deported from the

Netherlands. By decision of .. June, 1963, the District Court declared

his claim against the Minister of Justice inadmissible and rejected his

claim against the State. He appealed but his appeal was rejected, on

.. July, 1963, by the Court of Appeal (Gerechtshof) in The Hague and

his  further appeal was also rejected on 13th September, 1963 by the

Supreme Court.

Immediately after these two negative decisions had been given by the

Supreme Court, the Applicant was transported, on 13th September 1963,

in an aeroplane to New York where he was immediately arrested by the

US authorities.

Concerning the facts relating to the Applicant's transfer to the USA

his lawyer has submitted the following detailed information.

A. The Applicant's own experiences

12th September, 1963 - The Applicant wrote a letter to his lawyer and

asked for permission to send it as an express letter.  The letter was

accepted by the authorities and it was promised that it would be sent

by express.

13th September, 1963 - At about 10.30 hours the Applicant was told to

make himself ready to be transferred to the Main Bureau of the

Rotterdam Police.

At the exit from the house of detention he was informed by members of

the Aliens' Police of the decision of the Supreme Court given on the

same day, and he was also told that he would be taken to the airport

of Schiphol and from there be transported to the USA.  He then wanted

to telephone his lawyer but this was refused.

Soon after 10.30 hrs. the members of the Aliens' Police took the

Applicant in a car and drove him slowly to the airport, where they

arrived at about 13.00 hrs. The aeroplane bound for New York was to

leave about 13.30 hrs.

A short while before his departure, a member of the Aliens' Police

told the Applicant that he had received a message from his lawyer

- by way of the Ministry of Justice and the airport, authorities -

explaining that he was unable to come to the airport since he was

engaged in submitting a complaint to the Commission of Human Rights.

The Applicant was forced to board the aeroplane where he had to sit

between two members of the Aliens' Police.  They told him that the

transport was taking place in complete secrecy so that the US police

would not meet him and that this was done in order to avoid any

appearance of extradition.

Nevertheless, eighteen US officials were at the airport to receive

the Applicant. Three of them boarded the aeroplane, asking: "Who is Mr.

X?". One of the members of the Dutch Aliens' Police pointed to Mr. X

who was apprehended and taken away by the US officials.

B. The Applicant's lawyer's experience

13th September, 1963 - At about 10.15 hrs. the Applicant's lawyer

was informed of the decision of the Supreme Court and he immediately

went to Rotterdam to see the Applicant and discuss the situation

with him.  Shortly before 11.00 hrs., he arrived at the house of

detention, where he was told that the Applicant was absent, probably

at the Main Bureau of the Rotterdam Police.  He instructed his office

to find out about the Applicant's whereabouts but he sent no message

to the Applicant;  the message, which the Applicant received at the

airport, was consequently not sent by him.

In the course of the day the lawyer's office telephoned repeatedly

to the house of detention, the Main Bureau of the Rotterdam Police,

the Aliens' Police and the Ministry of Justice but could not receive

any information about the Applicant's whereabouts.

In the evening the lawyer managed to obtain from New York the

information that the Applicant had arrived there and was under arrest.

14th September, 1963 - In the morning the lawyer received a letter

from the Ministry of Justice, informing him that his client had been

transported to the USA.  He also received the letter, written by the

Applicant on 12th September, 1963 (see under A.). The letter was

stamped in Rotterdam on 13th September at 18.00 hrs. On the envelope,

Wallace had written "Express".  This word, however, had been deleted

by someone other than the Applicant and a stamp had been put on

covering this part of the envelope.

C.  The applicant's lawyer conclusions

The lawyer points out the following circumstances concerning the

events on 12th and 13th September, 1963:

(1) Everything was performed in complete secrecy. Even the Applicant

himself was surprised and did not get time to change his clothes before

he was taken to the airport.

(2) Any contact between the Applicant and his lawyer was refused or

frustrated.

(3) Shortly before his departure from the airport, the Applicant was

given the false information that his lawyer was aware of the situation

but could not come to the airport.

The lawyer states that secrecy was observed in order to avoid any

appearance of extradition;  it would not seem, however, that any

serious attempt was made to keep the transport secret from the US

authorities. The secrecy was, in fact, only a fiction.

This could also explain, in the lawyer's view, why no contact was

allowed between him and his client.  The authorities would otherwise

have been exposed to the risk that the Applicant's lawyer might request

guarantees that the US authorities would not be informed or information

given about possible contacts between the Netherlands and the US

authorities. It would also have been possible that the Applicant's

lawyer might have proposed that the Applicant should be permitted to

return by ship to a US port of his own choice or that an Application

with the Commission of Human Rights could have been lodged in time.

The false information given to the Applicant at the airport was

apparently meant to prevent him from requesting a conversation with his

lawyer or even from making physical resistance when being taken on

board the aeroplane.

Among the documents submitted by the Applicant's lawyer, there is

an expert report, dated ... 1963, in which Professor A of the

University of Leyden gives, for the information of the Minister of

Justice, his opinion on the legality of the Applicant's possible

transfer to the USA. Professor A considers that such a transfer against

the Applicant's will would be legal considering that there would be no

other way of sending him out of the country, that he was not entitled

to asylum and, further, that he had entered the country illegally. The

Government ought, however, according to A, to avoid any measures which

would make his transfer to the USA appear as an extradition de facto.

Nevertheless, it would seem necessary to inform the US authorities, at

least for "technical reasons".

The Applicant's lawyer criticises this last statement and considers

apparently that no such contact with the US authorities would have been

required.

In his original Application submitted on 13th September 1963, as well

as in his additional complaint of 9th March 1964, the Applicant alleged

violations of Articles 1, 3, 5, 6, 8, 13, 14, 17 and 18 of the

Convention and requested compensation;  in the original Application he

claimed a global sum of 100,000 guilders and a monthly payment of

10,000 guilders, as from 13th September 1963, whereas in his additional

complaint he requested 10,000 guilders a month, as from 13th September,

1963 until he was again at liberty.

The particular allegations made by the Applicant against the

Netherlands Government are set out below (Submissions of the Parties,

pages 8 - 18).

Proceedings before the Commission

Whereas the proceedings before the Commission to date may be summarised

as follows:

On 26th March, 1965, a group of three members of the Commission made

a preliminary examination as to the admissibility of the Application,

in accordance with Rule 45, paragraph 1, of the Commission's Rules

of Procedure and the group reported unanimously that the Application

appeared to be admissible.  Consequently, the President of the

Commission, acting in accordance with Rule 45, paragraph 2, of the

Rules of Procedure, gave notice of the Application to the Netherlands

Government and invited it to submit to the Commission its observations

in writing on the admissibility.

On 4th August, 1965, the Netherlands Permanent Representative at

the Council of Europe submitted the Government's observations

dated 2nd August, 1965.  A copy of these observations was sent to the

Applicant's lawyer who was invited to submit his observations in reply.

The Applicant's lawyer submitted his reply in two pleadings dated 25th

and 28th October, 1965.  Copies of these pleadings have been sent to

the Government for information.

Submissions of the Parties

Whereas the submissions of the Parties may be summarised as follows:

I. On procedural questions

(a) "In his letters of 25th and 28th October, 1965, the Applicant's

lawyer submitted that the document dated 2nd August, 1965 could not

be accepted as being the observations of the Netherlands Government.

This document had only been signed by Mr. B, a barrister at the Supreme

Court and deputy State Legal Adviser (plaatsvervangend Landsadvocaat),

and it had not been shown that Mr. B was the representative of the

Government within the meaning of Rules 36, paragraph 1, and 48,

paragraph 1, of the Rules of Procedure.  It was not sufficient that the

document had been transmitted by the Netherlands Permanent

Representative at the Council of Europe, since he had not signed the

observations and Rule 48, paragraph 1, requires signature.  The

Applicant's lawyer therefore requested that the Commission should

decide not to take notice of the document concerned.

(b) In his letter of 25th October, 1965, the Applicant's lawyer raised

two further formal questions which he referred to the Commission

without himself making any specific proposal:

(i) He indicated that the time-limit for the submission of the

Government's observations had expired on 1st August, 1965;  that,

nevertheless, the document signed by Mr. B had been sent to the

Netherlands Permanent Representative at the Council of Europe on 2nd

August, 1965; and had probably not been submitted to the Commission

until 4th August, 1965.

(ii) He further indicated that the document signed by Mr. B was drafted

in Dutch although the Government had not obtained permission to use

a language other than the official ones;  and that a translation into

English had not been submitted until much later.

II. On the admissibility

A. Complaints regarding the Applicant's detention in the Netherlands

1. The question whether or not the Applicant's detention was

permissible under Article 5, paragraph (1), of the Convention

The Applicant's lawyer stated that, according to information given to

the Applicant, he was detained at first, pending the decision to

declare him "an undesired alien" and, after such a decision had been

given, pending his deportation.  The lawyer alleged:

(a) that the Applicant was not being detained "awaiting procedure and

decision of a deportation court as there is no deportation court in the

Netherlands";

(b) that his detention was not lawful, there being no provision in

Dutch law which provides for detention in such a case;  in particular,

Article 9 of the Aliens Act of 1849 which was invoked by the

authorities does not provide for detention.  (Article 9 states as

follows: "Aliens who have not been admitted and cannot obtain a

passport shall, if they are nevertheless found within the country, be

taken across its frontiers").

(c) that he was detained with a view to extradition de facto although

extradition could not legally be effected (the submissions on this

point are set out more fully below).

The Government stated that the Applicant was told immediately after

arriving on 12th November, 1962 at the Rotterdam Police Station that

he was being held pending his deportation.  In regard to the

Applicant's allegations it was stated:

(a) that neither the first part of Article 5 ("in accordance with

a procedure prescribed by law", "selon les voies légales") nor the

wording of Article 5, paragraph (1)(f) ("action ... with a view to

deportation or extradition", une procédure d'expulsion ou

d'extradition") of the Convention, can be held to require specific

court proceedings as a condition of detention; and that, therefore, the

fact that there are not, under Dutch law, any specific court

proceedings in deportation cases does not make the Applicant's

detention contrary to the Convention;

(b) that the Convention, of which Article 5, paragraph (1)(f)

authorises detention with a view to deportation, forms part of

Netherlands law;

that deportation is permitted under Article 9 of the Aliens Act;

and that deportation of a person against his will implies that the

person concerned is deprived of his liberty (detained) since otherwise

deportation could not be effected.

that the police is competent to carry out a deportation measure as

part of its duty to maintain law and order; and that, therefore, the

police is also competent to enforce detention which forms part of

the deportation procedure;

that for such detention the police normally uses the detention quarters

available at the police stations;  that, for particular reasons, the

Applicant was detained longer than usual at a police station;  that,

in regard to his subsequent detention at a house of detention (Huis

van Bewaring), it is to be observed that, according to a provision

in the Act regarding the principles of the prison system (Beginselenwet

gevangeniswezen), these houses are designed to accommodate persons

lawfully deprived of their liberty by public order, in so far as no

other place of detention is appointed for them;

(c) that the Applicant was detained with a view to deportation and

not extradition (the submissions on this point are set out near

fully below).

2. The Applicant not being brought before a judge or a court

The Applicant's lawyer alleged that the Applicant, during his

detention, was at no time brought before a judge or a court for a

decision on the lawfulness of his detention.

The Government stated that the Applicant's detention was not authorised

by Article 5, paragraph (1)(c), but by Article 5, paragraph (1)(f),

of the Convention which provision does not require that the detainee

should be brought before a judge or a court.

3. Interference with the Applicant's private life

The Applicant's lawyer alleged that there had been an interference

with the Applicant's private life during his detention and that this

interference was not based on any legal provisions;  in particular,

the Applicant was not allowed to receive visitors which was important

for him in view of his attempts to arrange for his departure to a

country other than the USA.

The Government submitted that the Applicant's counsel had sufficient

opportunity to find a country which would be willing to receive the

Applicant;  that neither the Applicant nor his counsel asked for any

such visits to be permitted;  that there would have been good reasons

to refuse such visits (if the Applicant had made a request to this

effect), there being a risk of his using personal contacts for illegal

purposes;  that a refusal would have been permissible under Article 8,

paragraph (2) of the Convention;  that legal provisions relating to

this matter are contained in the Internal Rules of the Rotterdam House

of Detention (Huishoudelijk Reglement Huis van Bewaring te Rotterdam)

and the Prison Regulations Decree (Gevangenismaatregel) whose preamble

refers to certain articles of the Penal Code and to the act regarding

the principles of the prison system (Beginselenwet gevangeniswezen).

The Applicant's lawyer stated, in reply, that the Internal Rules

and the Decree referred to are not to be considered as "law" within

the morning of the Convention (see Article 8, paragraph (2): "in

accordance with the law") and that the articles concerned in the Penal

Code and the Act regarding the principles of the prison system are only

"law" in the formal sense of the word but not within the meaning of

the Convention.

4. Interference with the Applicant's correspondence

The Applicant's lawyer alleged that there had been interference with

the Applicant's correspondence during his detention.  He stated:

(a) generally, that the Applicant's correspondence was controlled

(including, during his detention in the police station, his

correspondence with his lawyer) and that this interference was not

based on any legal provisions;

(b) in particular, that the Applicant wrote a letter to his lawyer

on 12th September 1963 and asked for permission to send it as an

express letter;  that the letter was accepted and it was promised that

the letter would be sent by express;  that the letter was not received

by the lawyer until 14th September 1963, i.e. after the Applicant

had been deported to the USA;  that the letter was stamped in Rotterdam

on 13th September at 18.00 hrs.;  that the word "express" written

by the Applicant on the envelope had been deleted and a stamp had

been put on covering this part of the envelope.

The Government submitted

(a) that there were reasonable grounds for controlling the Applicant's

correspondence (the wish to prevent traffic in narcotics and obtain

information about possible contacts made by the Applicant for such

purpose);  that the legal ground for such restrictions in the right

to free correspondence is to be found in the Prison Regulations Decree

(Gevangenismaatregel), the Internal Rules of the Rotterdam House of

Detention (Huishoudelijk Reglement Huis van Bewaring te Rotterdam)

and the service Regulation No. 19 of the Rotterdam Municipal Police

(Dienstvoorschrift No. 19 van de Gemeentepolitie te Rotterdam);

that these restrictions are permissible under Article 8, paragraph (2),

of the Convention;  and that the Convention did not give any special

protection to the Applicant's correspondence with his lawyer,

as Article 6, paragraph (3) (c), is applicable only to cases of

criminal proceedings and no such proceedings had been instituted

against the Applicant.

(b) that the particular letter referred to by the Applicant's lawyer

was found in the house of detention on 13th September 1963, after

the Applicant's departure;  that it was posted on the same day;

that it is not known, whether the letter was marked "express" and

whether, in such a case, this word was deleted;  that, however, if this

was done, there were reasonable grounds for doing so.

The Applicant's lawyer stated, in reply, that the provisions referred

to by the Government are not to be considered as "law" within the

meaning of the Convention (see Article 8, paragraph (2): "in accordance

with the law").

5. Presumption of innocence

The Applicant's lawyer stated: "The Dutch Government has always

asserted that applicant should have entered Holland by an illegal way.

But there has been no trial against applicant because of illegal entry;

so the applicant can't be held guilty of such offense".

The Government replied that this allegation apparently related to

Article 6, paragraph (2), of the Convention;  that, however, this

provision only applies to persons charged with a criminal offense;

that this was not the case with the Applicant (the Government also

referred to Application No. 858/60, Yearbook IV, page 225).

6. Remedies in Dutch Law

The Parties' submissions as to the remedies in Dutch law are relevant

in respect of two different questions under the Convention, namely

(a) whether the Applicant was entitled under Dutch law to take

proceedings by which the lawfulness of his detention should be decided

by a court and his release ordered where the detention was not lawful,

as required by Article 5, paragraph (4), of the Convention;  and

(b) whether the Applicant exhausted domestic remedies within the

meaning of Article 26 of the Convention.

The Applicant's lawyer submitted

that there are no remedies in Dutch law, by which an alien could

obtain a decision either on the lawfulness of his detention except

if he is interned under the provisions of the Aliens Act of 1918 which

was not the case with the Applicant, or in regard to an interference

with his private life and correspondence;  that, in particular, there

is not, in respect of detention, a remedy which satisfies the

requirements of Article 5, paragraph (4);  that, although the

Convention forms part of Dutch law, Article 5, paragraph (4), and

Article 13 are not considered to be "self-executing";

that it is true that an alien can bring a civil action alleging

"détournement de pouvoir" by the authorities;  that, however, where

such an actionis brought, the courts are only competent to proceed to

a marginal examination of the issue of detention;  that, in fact, they

can only consider whether the authorities have acted from wrongful

motives but they are not competent to re-examine the administrative

decisions as such;  and that this limitation of the examination makes

an action ineffective, since the motives from which the officials acted

can hardly ever be proved.

The Applicant's lawyer also referred, in this regard, to certain

passages in the report which Professor A submitted, on ... 1963, to

the Minister of Justice (see above).  In this report, Professor A

also dealt with the possibility of an action in regard to the

Applicant's deportation based on alleged détournement de pouvoir and

stated inter alia:

"An action based on alleged détournement de pouvoir can only be

successful if it is evident that the competence of the authorities

concerned has been used for a purpose other than that for which it is

given. As you certainly know, Your Excellency, the Supreme Court (Hoge

Raad), in such a case, does not look at the factual consequences of the

measures taken by the authorities but examines only if the motives

which inspired the authorities in taking the measures concerned are

acceptable in view of the purpose of the legal provisions on which the

competence of the authorities concerned is based (see e.g. Supreme

Court 14-1-49, Nederlandse Jurisprudentie 557;  24-6-49, Nederlandse

Jurisprudentie 559).  What these motives were is deduced from possible

statements by these authorities or from other facts.

Difficulties arise when the authorities have been inspired by different

motives some of which are in conformity with the law, while other

motives are not. It would be possible to deduce from Supreme Court

24-6-49, Nederlandse Jurisprudentie 559 ... that an action based on

alleged détournement de pouvoir would also be successful in such cases.

It is true that the question of establishing the "motifs déterminants"

is also to be considered. According to the interpretation of

Hofmann-Drion-Wiersma in Het Ned. Verbintenissenrecht, 1959, page 234,

the decision concerned implies that, in the opinion of the Supreme

Court, there can only be détournement de pouvoir when it is established

that the measures taken by the authorities are entirely inspired by a

purpose which is contrary to the purpose of the law ...".

The Government submitted that the question whether or not the

Applicant's detention was lawful could have been examined by a court

if he had brought an action based on Article 1401 of the Civil Code

(this Article states as follows: "Any wrongful act, as a result of

which damage has been inflicted on another person, makes the person by

whose fault damage has been caused liable to pay compensation") which

provision can also be applied to the conduct of the public authorities;

that, when such action is brought, it is regular practice to test the

conduct of the authorities in respect not only of possible violations

of the system of law and justice, but also of "détournement de pouvoir"

or "abus de droit";  that the courts can also investigate the question

whether or not deprivation or restriction of liberty has been lawful

(rechtmatig);  that the Applicant can, in fact, still bring such an

action in regard to his detention and other alleged violations of

the Convention;  and that it would be incorrect to describe this remedy

as "inadequate".

B. Complaints relating to the Applicant's deportation

1. Unlawful detention and interference with the Applicant's private

life in connection with his transportation to the USA

The Applicant's lawyer alleged that the Applicant, during his flight

to the USA was illegally deprived of his liberty and that his private

life was interfered with.  In this respect, he stated, in particular,

(a) that the extradition treaty between the Netherlands and the USA

did not provide for extradition in respect of narcotics offenses or

passport frauds which were the offenses for which the Applicant was

claimed in the USA, that, despite this, the US authorities requested

the assistance of the Netherlands authorities in bringing the Applicant

back to the USA (see the letters of ... 1960 and ... 1961 referred

to on page 2 ; that the US authorities offered to pay for the

Applicant's transport and that they probably did pay for it;

that the Netherlands authorities transported the Applicant from

Amsterdam to New York where they delivered him to the US authorities;

that it is true that the Netherlands Government tried to avoid any

appearance of extradition but that, nevertheless, the Applicant was

subjected to a de facto extradition contrary to the existing

extradition treaty;

that the Netherlands authorities have repeatedly referred to the

Applicant's "deportation to the USA";  that, however, it could legally

be a question either of his deportation from the Netherlands or of

his extradition to the USA;  that Article 9 of the Aliens Act only

authorises the deportation of an alien across the Dutch frontier;

and that, therefore, the transport of the Applicant to the USA could

not be justified under the Aliens Act since the Netherlands has no

frontier with the USA;

(b) that, on 12th and 13th September, 1963, the Applicant was refused

permission to contact his lawyer;  that he was not allowed to telephone

the lawyer and that the letter he sent was delayed (see pages 4, 6

and 12 ;  that he was even given a false message purporting to

come from his lawyer;

that, on 13th September, 1963, the lawyer tried repeatedly to obtain

information as to what was happening to the Applicant by telephoning

to various officials concerned with the case;  that all such

information was refused;

that, consequently, the Applicant and his lawyer were prevented from

discussing whether legal proceedings should be instituted against

the KLM, the company which was to transport the Applicant to the USA,

or whether other legal action should be taken after the negative

decisions of the Supreme Court.

The Government submitted that a measure taken for deportation implies

deprivation or restriction of liberty of the person concerned;  that

such deprivation or restriction of liberty is recognised by Article 5,

paragraph (1) (f), of the Convention;  that any inherent interference

with a person's private life cannot be contrary to Article 8 of the

Convention;  that there is no evidence to show that the Applicant's

liberty, though naturally restricted in view of the means of transport,

was actually taken away from him during the flight;  that two plain

clothes police officers travelled with him in order to avoid

disturbances on board the aircraft but did not have to take any action.

The Government further stated

(a) that the Applicant was not wanted in the Netherlands, because

he had twice violated Netherlands hospitality by entering the country

with a false passport and by committing an offence in regard to

narcotics; that he was given the possibility of indicating a country

willing to receive him but that he was unable to obtain a permit to

enter any country other than the USA;  that the Netherlands authorities

could therefore only deport the Applicant by sending him to the USA;

that, as the measure proposed was not extradition, the Netherlands

authorities avoided making contact with the US authorities but found

it necessary to obtain an entry document before deporting the Applicant

to the USA;  that the travel tickets were ordered and paid for by

the Netherlands Ministry of Justice and that payment from the US

authorities has neither been asked for nor received;  that the

Applicant himself and not the police officers accompanying him revealed

his identity to the US police;  that, consequently, the Applicant was

deported and not extradited to the USA;  that, moreover, the question

as to whether or not he was extradited is irrelevant under the

Convention, since the right not to be extradited is not guaranteed by

the Convention;

(b) that it was decided not to give the Applicant and his counsel

any opportunity to contact each other during the period between the

Supreme Court's final decisions and the Applicant's departure, as

such contact would have no useful purpose and could result in action

which would delay the procedure, prolong the Applicant's detention

and draw the attention of the US authorities to the Applicant's

departure; and that it is not true that a false message was passed on

to the Applicant;  that the lawyer would have been allowed to take

leave of his client if he had asked permission but that he did not do

so; that the attitude of the authorities constitutes no violation of

the Convention, as Article 6, paragraph (3)(c) does not apply in the

present case and, if the situation should fall under Article 8, it

would be permissible under paragraph (2) of that Article.

The Government also submitted, as subsidiary arguments in regard

to the complaints as to the Applicant's deportation, that the question

of non-exhaustion of domestic remedies may arise, in so far as such

actions or motives are imputed to the State as were not alleged in

the court proceedings regarding alleged "wrongful acts";  and that,

moreover, if the Applicant alleges that the State's intentions were

other than those found by the Courts, the Commission could not accept

the Applicant's position without acting as an organ of appeal which

would be contrary to its jurisprudence.

2. Inhuman or degrading treatment

The Applicant's lawyer alleged that the transfer of the Applicant

constituted an inhuman or degrading treatment and indicated, in

particular, that in the USA the Applicant could be sentenced for

narcotics offenses to a much heavier sentence than could be imposed for

such offenses in Europe.

The Government submitted that deportation could only in very

exceptional cases be a violation of Article 3 of the Convention;  that

this Article might be involved if an alien was deported to a country

where one of his hands might be cut off for an offence which he had

committed or if he was deported to a place totally unfit for human

habitation, such as the high seas or an uninhabited island;  that,

however, the expected length of a prison sentence could not involve

this Article, particularly in view of the fact that the Convention

contains no provision regarding the length of sentences to be imposed.

THE LAW

Whereas the Commission finds it appropriate to deal first with certain

procedural questions raised by the Applicant; whereas the Applicant

has pointed out that the observations of 2nd August, 1965 have been

signed by Mr. B., a barrister at the Supreme Court and Deputy State

Legal Adviser; whereas the Applicant has further submitted that it

has not been established that Mr. B had been authorised to represent

the Netherlands Government in the present proceedings; whereas,

therefore, the Applicant has requested that the Commission should not

accept the document concerned as being the observations of the

Government;

Whereas the Commission takes into account the fact that the

observations concerned were submitted to the Commission by the

Netherlands Permanent Representative at the Council of Europe and were

stated by him to be the observations of the Netherlands Government;

whereas the Commission finds it evident that the document concerned

constitutes an authentic statement of the views of the respondent

Government and, consequently, accepts it as being the observations of

that Government;

Whereas the Applicant, without making any specific request, has also

stated that the observations of 2nd August, 1965 were submitted after

the expiry of the time-limit fixed by the Commission and that they

were first submitted only in the Dutch language although the Government

had not obtained the Commission's permission to use a language other

than one of the official languages; whereas the Commission observes

that the points raised by the Applicant relate to matters which fall

exclusively within the Commission's discretion; and whereas the

Commission finds no reason to disregard, on a formal ground, the

Government's observations or to take any other action as a result of

the Applicant's submissions in this regard;

Whereas, in regard to the substance of the Applicant's claim, it

has been alleged on his behalf that his detention in the Netherlands

was not permissible under Article 5, paragraph (1) (Art. 5-1) of the

Convention (see page 9 "Submissions of the Parties" II/A/1); whereas,

in this regard, the Applicant states, inter alia, that his detention

was not lawful under Dutch law;

Whereas, furthermore, the Applicant alleges that there was not at

his disposal a remedy satisfying the requirements of Article 5,

paragraph (4) (Art. 5-4) of the Convention (see page 14 "Submissions

of the Parties" II/A/6);

whereas in regard to these particular allegations, the Commission

has had regard to the provisions of Article 5, paragraph (1)

(Art. 5-1-f) in particular paragraph (1)(f), and of Article 5,

paragraph (4) (Art. 5-4); whereas it finds that an examination of the

Parties' submissions and the documents contained in the file does not

give it the information required for deciding on the admissibility of

these complaints; whereas the Commission has decided to request certain

further information from the Parties in regard to the admissibility of

this part of the Application, including the question as to whether the

domestic remedies have been exhausted within the meaning of Article 26

(Art. 26) of the Convention (see page 14 "Submissions of the Parties"

II/A/6);

Whereas, in the meanwhile, the Commission adjourns its examination

of this part of the Application;

Whereas the Applicant also alleges that he was extradited de facto

to the USA although extradition could not legally take place or that,

in any case, his transfer to that country was not a lawful measure

of deportation within the meaning of the provisions of the Dutch Aliens

Act (see page 16 "Submissions of the Parties" II/B/1/a);

Whereas it is to be observed that the Convention, under the terms of

Article 1, (Art. 1) guarantees only the rights and freedoms set forth

in Section I of the Convention; and whereas, under Article 25,

paragraph (1) (Art. 25-1) only the alleged violations of one of those

rights and freedoms by a Contracting Party can be the subject of an

application presented by a person, non-governmental organisation or

group of individuals;

Whereas otherwise its examination is outside the competence of the

Commission ratione materiae; whereas the right not to be extradited

or deported is not as such included among the rights and freedoms

guaranteed by the Convention; whereas in this respect the Commission

refers to its previous decisions Nos. 1465/62, X.v. Federal Republic

of Germany;  Yearbook V, page 256, and 2143/64, X. v. Austria;

Collection of Decisions, Volume 14, page 15;  whereas it follows that

this part of the Application is incompatible with the provisions of the

Convention within the meaning of Article 27, paragraph (2) (Art. 27-2)

of the Convention;

Whereas the Applicant also alleges that the authorities subjected

him to an inhuman or degrading treatment by taking him against his

will to the USA (see page 18 "Submissions of the Parties" II/B/2);

Whereas it is true that the Commission has held in a number of previous

cases (see, for instance, Applications Nos. 1465/62, X. v. Federal

Republic of Germany, Yearbook V, page 256, and 1802/62, X. v. Federal

Republic of Germany, Yearbook VI, page 462) that the deportation or

extradition of a foreigner to a particular country might in exceptional

circumstances give rise to the question whether there had been inhuman

treatment within the meaning of Article 3 (Art. 3) of the Convention;

Whereas,however, the Commission has no hesitation in stating that there

are no such exceptional circumstances in the present case;

Whereas it follows that this complaint is manifestly ill-founded within

the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas, in regard to the remaining complaints, an examination of the

case as it has been submitted, including an examination made ex

officio, does not disclose any appearance of a violation of the rights

and freedoms set forth in the Convention; whereas it follows that

these complaints are also manifestly ill-founded within the meaning

of Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas, however, the Commission finds it appropriate to indicate here

below in further detail the grounds on which the Commission considers

these complaints to be manifestly ill-founded;

Whereas the Applicant alleges that, during his detention, he was not

brought before a judge or a court for a decision on the lawfulness of

his detention (see page 11 "Submissions of the Parties" II/A/2);

Whereas Article 5, paragraph (3) (Art. 5-3) of the Convention provides

that everyone arrested or detained in accordance with the provisions

of paragraph (1)(c) of the same Article (Art. 5-1-c) shall be brought

promptly before a judge or other officer authorised by law to exercise

judicial power;

Whereas the Applicant was not arrested or detained in accordance

with Article 5, paragraph (1)(c) (Art. 5-1-c); whereas, consequently,

Article 5, paragraph (3) (Art. 5-3) was not applicable to the

Applicant's case;

Whereas there is no other provision in the Convention which could give

the Applicant a similar right in the circumstances to be brought before

a judge or a court; whereas it is a separate question whether the

Applicant himself could institute court proceedings in accordance

with Article 5, paragraph (4) (Art. 5-4); whereas this question has

already been dealt with above;

Whereas the Commission has considered in relation to Article 8

(Art. 8) the Applicant's allegation of an interference with his right

to respect for his private life (see page 11 "Submissions of the

Parties" II/A/3); whereas, in particular, he complains that, during his

detention, he was not allowed to receive visitors which was important

for him in view of his attempts to arrange for his departure to a

country other than the USA;  whereas, having regard to the Government's

submissions on this point, it is not clear whether or to what extent

the Applicant was refused permission to receive visitors; whereas,

however, in so far as any such restrictions on his right to respect for

his private life were imposed, the reason was apparently that, in the

opinion of the authorities, there was a risk of the Applicant using

personal contacts for illegal purposes; whereas the Applicant has

failed to show that this opinion held by the authorities was unfounded

or unreasonable; whereas the Commission is also satisfied, on the basis

of the Government's submissions, that such restrictions were

permissible under Dutch law; whereas it follows that the measures

complained of were permissible under Article 8, paragraph (2)

(Art. 8-2) of the Convention which permits, inter alia, such

interference with the exercise of the right to respect for private life

"as is in accordance with the law and is necessary in a democratic

society - for the prevention of - crime -";

Whereas the Applicant further complains of interference with his

right to respect for his correspondence (see page 12 "Submissions

of the Parties" II/A/4); whereas, in particular, he complains that

his correspondence was controlled by the authorities during his

detention and that for a certain time such control was also exercised

in regard to his correspondence with his lawyer; whereas in a number

of previous cases the Commission has examined complaints by detained

persons regarding measures of control exercised by the authorities over

their correspondence;

Whereas in these cases the Commission has generally considered that

the practice of permitting prison authorities to examine the

correspondence of the detainees falls within the exceptions permitted

in Article 8, paragraph (2) (Art. 8-2) of the Convention (see, for

instance, Application No. 646/59, X.v.Federal Republic of Germany,

Yearbook III, page 272);

Whereas the Commission also notes that, in the present case, the

authorities considered it essential to control the Applicant's

correspondence in order to prevent the possible committal of narcotics

offenses;

Whereas the Commission is satisfied, on the basis of the Government's

submissions, that the said control was exercised in accordance with

Dutch law; whereas, consequently, the measures complained of were

permissible under Article 8, paragraph (2) (Art. 8-2); whereas the

Commission adds that, in regard to the particular letter posted on 13th

September 1963, it is not satisfied that there has been any undue delay

or other interference which could be attributed to the authorities;

Whereas, consequently, in respect of that letter, there is no

appearance of any interference within the meaning of Article 8,

paragraph (1) (Art. 8-1) of the Convention;

whereas the Applicant also alleges that the Dutch Government has held

him guilty of illegal entry into the Netherlands, although he had not

been convicted of such offence (see page 13 "Submissions of the

Parties" II/A/5);

whereas Article 6, paragraph 2) (Art. 6-2) of the Convention provides

that "everyone charged with a criminal offense shall be presumed

innocent until proved guilty according to law"; whereas the Applicant

was not charged, at the time concerned, with the offence of illegal

entry or any other equivalent offence but was detained pending his

deportation from the Netherlands; whereas, consequently, Article 6,

paragraph (2) (Art. 6-2) was not applicable in the circumstances of his

case;

Whereas the Applicant complains that he was detained in the aircraft

taking him to the USA and that this constituted during the flight

an interference with his private life (see page 16 "Submissions of

the Parties" II/B/1); whereas the Commission has stated above that the

right not to be extradited or deported is not as such included among

the rights and freedoms guaranteed by the Convention;  whereas a

measure of extradition or deportation generally implies that the

liberty of the person to be extradited or deported is restricted during

the execution of that measure; and whereas it is also clear that

a certain interference with a person's private life may be a

consequence of such restriction of liberty; whereas the Commission is

satisfied that the restriction of the Applicant's liberty during the

flight was a lawful detention within the meaning of Article 5,

paragraph (1) (f) (Art. 5-1-f) of the Convention and that, in so far

as there was any interference with the Applicant's right to respect for

his private life as a result of that flight, such interference was

covered by Article 8, paragraph (2) (Art. 8-2) of the Convention;

Whereas the Applicant complains that on 12th and 13th September 1963,

he and his lawyer were prevented from contacting one another (see page

16 "Submissions of the Parties" II/B/1 b); whereas the Commission

considers that the attitude of the authorities in this regard could not

constitute a violation of Article 6 (Art. 6) or any other provision of

the Convention.

Now therefore the Commission

1. Rejects the Applicant's formal objection and other comments relating

to the submission of the Government's pleading on admissibility;

2. Adjourns the examination of the part of the Application relating to

the alleged violations of Article 5, paragraphs (1) and (4)

(Art. 5-1, 5-4) of the Convention during the Applicant's detention in

the Netherlands;

3. Declares the remainder of the Application to be inadmissible.